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Wednesday, May 04, 2011 

No alarms and no surprise revisited.

If it wasn't apparent before, it ought to be now. The real reason why it's such a rare occurrence for police officers who've killed members of the public while on duty to face trial is because when the facts of similar cases are laid out before juries, whether in the form of health and safety prosecutions or inquests, they have this irritating habit of finding either the defendants guilty or that the victim was unlawfully killed.

This isn't to suggest that the director of public prosecutions, Keir Starmer, who made his name as lawyer working on human rights cases conspired with the police when he decided that PC Simon Harwood would not face any criminal charges over his assault on Ian Tomlinson. Rather, it seems he fell into the trap of believing that it would be too difficult to convince a jury beyond reasonable doubt that the actions of the officer lead directly to the Tomlinson's death. Considering the differences of opinion between the pathologists, with the first, Dr Freddy Patel ruling that Tomlinson had died from a heart attack rather than internal bleeding caused after he fell following being pushed, it would have hardly been an easy case, and one on which there would have been much media attention.

Nonetheless, and indeed exactly because as the Guardian puts it there is nothing more serious than the state taking the life of one of its subjects with the exception of agents of the state covering just such an incident up, Starmer ought to have erred on the side of letting a jury hear all the evidence. Such a case would have been clearly in the public interest. The virtues of taking just such a nuanced approach could hardly have been more vindicated than by the inquest into Tomlinson's death, helmed by Judge Peter Thornton QC. Unlike in the inquest into the death of Jean Charles de Menezes where the coroner disgracefully decided that the jury could not reach a verdict of unlawful killing, Thornton gave the jury the option, while stressing that they had to be certain beyond reasonable doubt, the same legal distinction as that required in a criminal trial. Having expected a longer wait, the court was relatively startled when the jury took just under three and a half hours to decide that Tomlinson had been unlawfully killed.

Considering the evidence presented, this wasn't exactly surprising. PC Simon Harwood himself was almost the definition of an unreliable witness, repeatedly changing his story when it was challenged, not just by the lawyers for Tomlinson's family, but also by the quality and quantity of the material shot on the day of the G20 protests. Having initially claimed to investigators that Tomlinson had been defiant and resisting orders when he pushed him, he still maintained that the strike and push which felled him were justified in the circumstances, rather than say prodding him, taking him by the shoulders and physically moving him away, or, heaven forfend, forcefully but politely asking him to move faster. Whether or not Harwood, who in the minutes before pushing Tomlinson had swung a coat at a protester, knocked over a BBC cameraman and used a "palm strike" against someone else, was acting out his anger and embarrassment following his failure to arrest a man who had vandalised a police van is known only to him.

Similarly, Dr Freddy Patel was left with little option than to change his original opinion faced with the three other pathologists and other medical experts all deciding that Tomlinson's cause of death was abdominal bleeding. Patel was admittedly put at a disadvantage from the very beginning, the police having told him when he was brought in to perform the post-mortem that Tomlinson had not been involved in any public disorder and that he had sleeping rough for the last 20 years, just one of the many untruths originally put out to the media by the Met, along with the claim that they had been assaulted with missiles while tending to Tomlinson. Even so, Patel erred in not retaining or sampling the three litres of intra-abdominal fluid blood or intra-abdominal fluid with blood which had collected in Tomlinson's abdomen, which would have proved the key to whether he had died from internal bleeding as the other pathologists believed. In any case, that Patel had previously been criticised for discussing confidential details in public, as well as being involved in the failings concerning Anthony Hardy ought to have disqualified him from any possibility of carrying out the autopsy.

As wearingly familiar as this sad tale of changing stories, incompetence and abuses of power is, the real outrage is that the overall cause remains the same. Just as the officers on the morning of the 22nd of July 2005 were briefed that those they were after were "up for it" and ready to commit acts of mass murder, giving the impression that lethal force was permissible even when it hadn't been authorised, so the police prior to the G20 had made clear just how determined they were to crack down hard on those who were out to smash up the City. We duly saw police medics brandishing batons, those without the first idea how to "safely" use a truncheon flinging it around, and of course, the storming of the entirely peaceful Climate Camp, since found to have been illegal. Ian Tomlinson died both as he was in the wrong place at the wrong time and because he was vulnerable to just such an injury as he received; dozens of others got cracked heads or worse just for daring to take part in a demonstration. It would be nice to think that following such regrettable incidents that future policing would have been rethought, but no, as the example of Alfie Meadows so pungently demonstrates.

Whether Simon Harwood will now face a manslaughter charge following the CPS review remains to be seen. Doubtless his representatives will argue that the inquest and the coverage of it has damaged his chances of receiving a fair trial. What hopefully will change is the giving of the benefit of the doubt to the police and the authorities when such prosecutions are first considered, something which has gone on for far too long, as does the condescending view that juries are incapable of following or making a judgement on complicated, conflicting medical evidence. Justice, even if it involves the throwing out of cases by judges or acquittals which result in questions over whether a prosecution should have been brought, has to been seen to be done.

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