Thursday, 22 July 2010

Death of Mr Ian Tomlinson - no charges to be brought

Mr Ian Tomlinson died in Threadneedle Street, London on 1st April 2009.  Almost 16 months later, the Crown Prosecution Service has announced that no criminal charges will be pursued against the Police Officer who, whilst with other officers controlling crowds during the G20 conference, had struck Mr Tomlinson with his baton and subsequently pushed him strongly from behind causing him to fall.  Mr Tomlinson was able to get up - (the Police provided no assistance to him) - and moved away to Threadneedle Street where he collapsed and died.  (At the time, there were Police claims that protesters had made their task in dealing with him difficult).  The CPS has published its reasoning - see here.  At no time was Mr Tomlinson a protester - he was trying to return home but finding it diffcult due to various police cordons.

Proving a causal link between between the push and fall and the death some time afterwards was clearly always going to be a difficulty and proof would have been crucial if a manslaughter conviction were to be secured.  Proving causation is not a medical question though, in practice, medical evidence often arises.  The law requires that the actions of the defendant had "contibuted significantly" to the outcome/consequence.  There were 3 post-mortems: the first (Dr Patel) concluded that the death was due to coronary heart disease.  It seems from the CPS statement that Dr Patel was unaware that Mr Tomlinson had been pushed.  It is not clear why Dr Patel did not know this.  However, it would appear that - at the time of doing the post-mortem - he had not been told and had not learned of it (like most people) from the news.  Two further post-mortems concluded that death was due to abdominal haemorrhage (blunt force trauma to the abdomen).  Only the first post-mortem had access to the "intact body" and Dr Patel had not retained some 3 litres of fluid found.

The CPS concluded that they would have had to call Dr Patel as a witness and he would have re-iterated his findings.  However, he would also have been subjected to cross-examination which (who knows) might have revealed more information.  We will now never know.

The CPS also concluded that they cannot bring any charge of assault.  Two possibilities existed: common assault and assault occasioning actual bodily harm (Offences Against the Person Act 1861 s47). The CPS considered the "patterned bruising" caused by the baton.  They concluded that this did not amount to actual bodily harm sufficiently serious to bring a charge under section 47.  Also, common assault could not be charged since the incident was over 6 months previously and such a charge (triable summarily only) must be brought within 6 months.  It is well established law that "actual bodily harm" is given a wide interpretation - it must be "not so trivial as to be wholly insignificant" (R v Chan-Fook [1994] 2 All ER 552) or "more than merely transient and trifling" (R v Donovan [1934] 2 KB 498).  It looks very much as if the CPS has put the bar too high in ruling out a charge under section 47 though the CPS state that they followed the usual "charging standards".

The CPS also rejected a charge of misconduct in public office. The modern leading case on this is the Court of Appeal decision in Attorney-General's Reference 3/2003.  Further discussion on this aspect of the case may be read on the Jack of Kent blog where the learned author considers that the CPS misdirected itself on the law relating to misconduct in public office.

This will be, yet another, of those cases where the CPS will be considered to lack robustness and a willingness to trust a jury to reach a sensible decision on ALL the available information.  There will also be the view that there is a disparity in how the CPS deals with allegations against the Police as opposed to allegations against others.

See a video of the event on The Guardian website.  An article in The Guardian describes how some lawyers are dismayed over the decision - see "Lawyers challenge CPS over decision not to prosecute" - 22nd July.  See also the Tomlinson family campaign and Inquest.  The views of the Police Officer in question are not, as far as I know, in the public domain.

Addendum - 23rd July:  The second pathologist (Dr Cary) is reported to be stating that his post mortem report made it clear that Mr Tomlinson suffered injuries of sufficent seriousness to justify a charge of actual bodily harm - see The Guardian 23rd July.  It also appears that the first pathologist (Dr Patel) is the subject of an "Interim Order with conditions" made by the General Medical Council's Interim Orders Panel.  The interim order, which is in respect of complaints unrelated to Mr Tomlinson's case, was made on 21st July 2010 and lasts for 18 months (subject to review) - see Guardian 23rd July.  As for the Police Officer who struck Mr Tomlinson, it seems to be unclear just how he will be disciplined - see The Guardian 23rd July "How will Police discipline the officer .."

Addendum A - 26th July:  The Independent Police Complaints Commission statement about this case may be read on their website - IPCC.  Also, there is an interesting discussion on the Charon QC blog.

Addendum B - 26th July: The Coroner due to hear the inquest into Mr Tomlinson's death is coming under pressure to stand down and allow the appointment of another Coroner - see The Guardian 26th July.  The Attorney-General Mr Dominic Grieve told Parliament that he had seen nothing to make him doubt the propriety of the decision-making in this case - see here.  The Attorney said that he did not believe that a different decision would have been reached had the dead person been a Police Officer.  (The Attorney-General has "superintendence" over the CPS).

Addendum 27th July:  The Guardian 27th July "Ian Tomlinson death: Police Officer faces disciplinary hearing"


  1. As an 'umble magistrate I see one end of the spectrum of competence within the CPS. I usually reassure myself that for the small number of cases we send upstairs, that these will be dealt with more professionally. My court has a dedicated domestic violence court and there is a regular prosecutor who does an excellent job, but who normally appears in the Crown Court.

    It seems that my assumption that others are more competent than those I meet may be misguided. Given the extent to which the CPS intervenes with charging of J.Public Esq for trivia, I am amazed that they can allow an investigation in a matter so high profile to be so ineptly led. We pride ourselves in the UK on the system and standard of justice but it seems that the Tomlinson family have been denied this. I have just seen the BBC clip where a relative makes the point that had the perpetrator been anyone other than (as he puts it) the old bill, this would have been dealt with. Difficult, I regret, not to reach the same conclusion.

  2. Isn't there also a public interest test that they need to perform?

    Surely it is in the public interest to put this before a jury, even if there is little chance of conviction? After all, a jury might well decide to convict on very little evidence; could it be that the CPS is trying to shield the police from that?

  3. It's a "realistic" chance of conviction AND "in the public interest" according to the CPS website. Strange decision though. Not charging a policeman with anything based on that video, can do nothing but undermine public confidence in the police and the law.
    I expect a private prosecution. I know the family said they can't afford it, but a barrister prepared to act Pro Bono would get round that.

  4. Interesting summary. Thank you.

  5. An excellent, informative summary. I have seen a lot of commentary elsewhere, but it is highly informative to have the facts laid out so succinctly and in simple English.

    As an 'umble layman, may I ask a question that I have not been able to find an answer to elsewhere: the six month limit notwithstanding, is there any other limit in UK criminal law to bringing a charge, such as assault, in which the victim is dead? That is, a charge that does not relate to the manner of his death (murder, manslaughter, negligence etc), his remains (cannibalism, necrophilia etc) or his estate? Is such a limit set within the statute/s covering that particular offence, or is there an overreaching limitation in criminal law similar to that which might apply in civil law? Or both?

  6. To Louseandflea - thank you for your comment.

    The basic position regarding time limits for prosecutions is that: (a) for offences triable only in magistrates' courts (i.e. summary offences) the "information" must be laid with the magistrates court within 6 months of the date of the alleged offence; (b) for offences triable on indictment in the Crown Court then there is no time limit.

    The basic position has been modified by Acts of Parliament in a number of areas. There is a summary of these on the Police National Legal Database though I do not offer any guarantee as to its accuracy.

    Certain other rules of law might prevent prosecutions or trials. One is the "double jeopardy" rule (as modified by the Criminal Justice Act 2003).

    I don't propose to consider the position in tort here apart from saying that, in some circumstances, liability for a tort may continue to exist even after the death of the victim of the tort.

  7. A post advertising Criminal Attorneys has been deleted. They operate in the USA.