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Thursday, July 22, 2010 

No alarms and no surprises.

Hands up those surprised in the slightest that the Crown Prosecution Service has decided that no charges will be brought against the Metropolitan police over the death of Ian Tomlinson? None of you? Jolly good. Finally, maybe, the message is now starting to get into the thick skulls of everyone that whenever the police, either accidentally or in the most brutal manner imaginable kill members of the public that it's only in incredibly rare circumstances that the officers themselves face prosecution. The only example in recent memory of a police officer facing a charge of both murder and manslaughter as a result of their actions while on duty was in the case of James Ashley, who was shot dead in his bedroom during a botched police raid back in 1998. The officer was acquitted of both charges when the judge agreed that he had acted in self-defence, believing he was about to be shot himself. This was despite Ashley being naked, acting in a daze as he had just been woken up, and having no weapon to hand. Last year Sussex police apologised to Ashley's family, admitted negligence and paid compensation.

Since then, no further charges in similar cases have been forthcoming. There were none when 10 bullets were pumped into the head and shoulder of Jean Charles de Menezes, the end result of an operation which was memorably described by a Met source as a "complete and utter fuck-up", although there was the small matter of the successful prosecution against the Met on health and safety grounds. There were none when Harry Stanley was shot dead, a Scotsman described to the police as an Irishman carrying a shotgun in a plastic bag which turned out to be a chair leg. Indeed, even though no officer was actually charged with a criminal offence, when the second inquest into his death resulted in a verdict of unlawful killing and the officers responsible were suspended from duty, their colleagues in other armed response units took umbrage and handed their weapons in. Happily, the High Court later overturned the second inquest's result, reinstated the first's open verdict and everything was right with the world again. There were also none when a CO19 officer shot dead Azelle Rodney, despite the Independent Police Complaints Commission agreeing that he was not holding a weapon when the car he was in was surrounded.

In all of those cases the evidence was far more clear-cut than that against the officer who pushed over Ian Tomlinson. True, they all claimed they were acting in self-defence, believing in the case of de Menezes that he was a suicide bomber about to detonate his explosives, while the others believed they were in mortal danger from armed men, something which PC Simon Harwood, as he has been named, clearly couldn't, threatened so visibly as he was by Tomlinson walking away from him and the other officers with his back turned and hands in his pockets. It was always going to be difficult to prove beyond reasonable doubt in a court that the baton strike and push unequivocally led to Tomlinson's death and so justify a charge of manslaughter against Harwood. That was without the conflicting evidence of the 3 post-mortems.

Here's where it gets murky. Dr Freddy Patel, the pathologist who carried out the first autopsy, had previously been criticised by the General Medical Council for discussing confidential details about a man who died in police custody outside of an inquest. He had also performed the post-mortem on Sally White, a 38-year-old woman whose body was found in a locked bedroom in the home of Anthony Hardy, a death initially deemed by the police as suspicious. Patel's verdict was White had died from heart disease, and the investigation was dropped. Hardy subsequently pleaded guilty to the murder of three women, including White. Patel has since been charged with misconduct by the GMC over three other post-mortems he is alleged to have conducted incompetently.

He may eventually face a fifth, if he isn't struck off at the conclusion of the current hearing. Crucially, while concluding that Tomlinson had died from natural causes as a result of coronary artery disease, Patel recorded but did not retain or sample 3 litres of either intraabdominal fluid blood or intraabdominal fluid with blood which had collected in Tomlinson's abdomen. His first report suggested the former, but in a second submitted on the 6th of April this year he settled on the latter. If it was blood, according to the Crown Prosecution Service's statement, that would have been highly significant indicator as to the cause of death. However, when meeting the prosecution team, Patel maintained it mainly consisted of ascites, having formed in Tomlinson's damaged liver, which had been stained with blood. He didn't retain or sample it as he had handled blood his entire professional life and was convinced it was ascites stained with blood rather than just blood. Moreover, he had found no internal rupture which could have led to such a level of blood loss. The doctors who conducted the second and third post-mortems, while acknowledging that Tomlinson had a partially blocked artery, concluded that he had died as a result of abdominal haemorrhage from blunt force trauma to the abdomen, in association with alcoholic cirrhosis of the liver. They believed that when Tomlinson had fell following being pushed, his elbow had impacted in the area of his liver causing an internal bleed and leading directly to his death a matter of minutes later. The only way to be certain would have been to re-examine the fluid initially found by Patel and which he had removed without retaining. For Tomlinson to have died so quickly from blood loss there would have had to have been some kind of internal rupture, something found by none of the doctors. Since Patel was the only doctor to examine Tomlinson's intact body, he was in the best position to have considered the fluid and found a rupture, leaving the CPS to decide the differences between the doctor's opinions was irreconcilable.

The key question is why Patel was chosen to conduct the post-mortem in the first place. It's believed he didn't have a police contract at the time, yet instead of an accredited team of 9 pathologists who more usually deal with suspicious deaths, he was picked by City of London coroner Paul Matthews. At the time the City of London police were handling the investigation rather than the Independent Police Complaints Commission, who despite the circumstances of the death during the G20 protests let them get on with it, not getting involved until the Guardian posted the footage of Tomlinson being pushed over online. Proving there was an active conspiracy to chose an incompetent pathologist will be next to impossible; even if the City of London police were willing to overlook the shortcomings of their colleagues in the Met, and already knew about what was likely to have happened, would their coroner have took part in a cover-up too? The trusty blade of Occam's razor would instead suggest it's more likely to have been incompetence and cock-up, especially when they would have had to depend on Patel either playing along or performing his usual shoddy job, not always guaranteed. That's not to say it couldn't have happened, just less plausible than the alternative.

Clearly, the IPCC should have been in charge from the beginning, although their record is hardly sparkling either. Even so, as the Guardian argues, even with the inherent difficulties in a prosecution case it should have been up for a jury to hear the contradictory post-mortem evidence and make a decision, especially when Patel's standing as a pathologist is so under question. That not even an attempt has been made to prosecute Harwood with assault on the grounds the legal limit for doing so had long since passed is disgraceful. How many other cases involving members of the public are lost each year due to the incredibly short six month timeframe for charges being brought? The pathologist who carried out the second post-mortem has also disputed the CPS's justification for not bringing charges of assault occasioning actual bodily harm saying the injuries which they called minor were in fact more serious, involving a large area of bruising.

This is without considering the crucial test of turning the tables. If a member of the public had hit and then pushed over an on-duty police officer who had their back turned to them, who subsequently died a matter of minutes later, would the CPS then be so reticent in bringing charges, even if there was a similar dispute over the cause of death? While the inquest is still to come, it seems for now that yet again the police have got away scot-free after being involved with a death of an entirely innocent bystander. Public confidence in the police, the CPS and the IPCC relies on their best practice and independence. When on so many separate occasions they seem determined to ignore what is staring them in the face and accept in good faith everything they're told by the police while casting doubt on anything that contradicts those statements it starts to look like collusion. And then the media, police and all right-thinking people wonder how Raoul Moat could possibly be sympathised with, let alone lionised.

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