Following on from my blogpost yesterday, can anyone explain why the conflicting post mortem reports could not be dealt with by means of cross-examination at a jury trial?
The CPS decision is here.
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Monday, 26 July 2010
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Because the fundamental issue is a physical one which cross examination will not change?
1. Pathologist 1 did not keep back intraabdominal fluid, so no matter how often you ask pathologists 2 and 3 about the fluid they cannot give an answer. They assumed 3 litres of blood from pathologist 1's report, but pathologist 1 says 3 litres of blood with SMALL blood clot.
2. Postmortems 2 and 3 did not find signs of rupture. Neither did pathologist 1. Since rupture is key part of causation and no pathologist can provide evidence of it cross-examination would not resolve this.
That said, on grounds of maintaining public trust I would have preferred a trial, even if medical evidence meant that jury were 99.9999% likely to not convict.
Agreed, surely deciding between conflicting reports like that is the whole point of a trial?
In terms of the law I have no idea.
But practically, this strikes me as the sort of question that is very poorly suited to a jury. It necessarily involves evaluating contradictory medical evidence. Surely that would be extremely difficult for a lay audience.
Did you see the Dizzy Thinks post[1] on this? I think he's wrong, but it seems a reasonable statement of the opposing argument.
[1] http://dizzythinks.net/2010/07/why-cps-was-unfortunately-right.html
Ben,
I think the issue here is that the medical evidence is not contradictory, but the medical opinion is.
If pathologist 2 or 3 had noted evidence of rupture, I suspect they might have prosecuted.
If Patel had keep the intra-abdominal fluid and pathologists 2 and 3 had found it showed evidence of a massive bleed, then I suspect they might have prosecuted.
However, it appears that all they have is an opinion that differs from pathologist one, without the supporting evidence.
IMHO the CPS decision is less open to criticism than the management of the post-mortem. Why would you have the post-mortem performed by someone who has had questions asked about him since 2004?
http://www.guardian.co.uk/uk/2009/jul/02/g20-ian-tomlinson-death-pathologist
Can anyone explain to me why a police officer who has deliberately concealed their police ID number and their face should be treated as a police officer?
Surely they lose any rights (rights to assault people?!) that they had as soon as they hide their identity.
Is there some kind of court convention that it is not the done thing to criticise an official pathologist in a trial that would prevent Dr. Patel's evisceration on the witness stand as to his credibility? Otherwise I would have thought any competent barrister could traduce his reputation sufficient to persuade a jury to at least be suspicious of his testimony.
The tone of the CPS statement not to prosecute made me think of this since they seemed not to even consider that a jury would not treat all three pathologists equally.
Do you need a rupture for causation here?
wasn't the push in of itself enough to set off the chain of events?
From my quick reading of the Statement from the DPP it seemd to me that the concern was that the CPS felt that they would be obliged to call Dr Patel as well as the other two medics because he was the only person who saw the body intact and without him the Defence would have a field day.
However, if the CPS did call Dr Patel as well as the other two medics, the CPS would not be in a position to cross-examine Dr Patel at trial as he would be their witness. The law does not allow an advocate to cross-examine his own witness except in very exceptional circumstances where the witness is ruled to be hostile - that would hardly be likely to apply here. This would leave the CPS adducing contradictory evidence as to cause of death with which the Defence would also have a field day.
The most surprising thing seems to be that Dr Patel stuck with his conclusion of natural causes even after he became aware of the facts surrounding Mr Tomlinson's death. At the time he conducted the first post mortem he only knew that Mr Tomlinson had collapsed in the street and was unaware of the assault perpetrated upon him by the policeman. I am a lawyer not a medic, but I would have expected Dr Patel to consider that there was at least a real possibility that the chain of events that culminated in Mr Tomlinson's death were causally linked, once he became aware of those facts.
Dr. Patel’s refusal to change his mind after new facts came to light could be something to do with the ongoing misconduct hearing. If this was the case why can he not be treated as hostile?
I would seem to me that at the moment the best way to ensure an acquittal would be to get an incompetent (subject to GMC hearing) stubborn pathologist to conduct a post mortem with indecent hast, without the coroner notifying the family, oh wait a moment!
Joseph K.
I totally agree with JoK that it is quite shocking that no case has been brought against the police officer, and that the CPS actions have further confirmed the view held by many that the law is not always as unbiased as it should be.
I would be prepared to accept that it would be difficult to establish a causal link between the push and Ian Tomlinson's death, but I don't see why this precludes other criminal charges, eg for assault, bringing public office into disrepute etc. being brought.
The finagling of the CPS with missed deadlines etc. makes their decision even more malodorous in my view.
@Ben
But practically, this strikes me as the sort of question that is very poorly suited to a jury. It necessarily involves evaluating contradictory medical evidence. Surely that would be extremely difficult for a lay audience.
I find your comment that lay people are not capable of weighing up evidence rather patronising.
We of the great unwashed are not all Heat! reading oiks, I'll have you know.:)
During the last few days there have been several claims that the failure to prosecute is quite normal
Lets look at this for a second devoid of the contentious Police officer. Imagine Someone assaulted with TV film of the action taking place, from which they can be clearly Identified. Imagine it happens in a crowded place, where there are lots of willing witnesses. Imagine that for some reason one of the forensic pieces of evidence is a point of dispute between two prosecution scientific witnesses. Similarly the CPS has taken so long to bring charges that the only charge that it can sustain have timed out. Can you honestly say that this wouldn't have been on the front page of every tabloid paper as an example of Broken Britain? or whatever stick the current opposition is using to beat the government of the day? Try as I might I can't remember this sort of story appearing there.
An interesting summary of the case is presented here:
http://www.u.tv/News/Ian-Tomlinson-a-story-of-justice-denied/8412f1df-6c8b-4502-ab21-467f9bafee34
The 'difficulty' for the CPS caused by three conflicting autopsy reports is a real one.
The CPS is the body that decides whether to prosecute a case.
It has to satisfy itself that:
i. there is a case to answer
ii. there is a likelihood of a successful conviction
I must say that I can find nothing wrong with their analysis of the legal and medical quagmire in which they now find themselves.
Ian Tomlinson was clearly assaulted (on 1st April): the video evidence confirms this. However, it does appear virtually impossible to provide clear medical evidence linking his later collapse and death with the assault.
For that reason, only a charge of assault seems appropriate, and that, through the passage of time, has become unavailable.
But questions remain?
Why, once the video and witness statements were available, was a charge of assault not laid immediately against the police officer involved, with further progress on the prosecution being held over until the completion of the investigation and in the event that there was evidence sufficient to warrant more serious additional charges?
Why did Scotland Yard and the City of London police mislead the press, the public and members of Tomlinson's family for four days after the incident?
Why did IPCC try to secure a court order preventing Channel 4 News showing the film - a judge refused to grant the injunction.
ref: http://news.bbc.co.uk/1/hi/uk/8013164.stm
Why did the police officer concerned fail to come forward until April 8th and then only once the video evidence was available?
Has the officer concerned been disciplined for failing to display his identification number?
"Nick Hardwick, chairman of the Independent Police Complaints Commission, ... said that officers had "an absolute obligation" to have visible identification and failure to do so would be a disciplinary offence."
ref: http://www.guardian.co.uk/politics/2009/apr/21/police-protest-id-numbers
and:
http://www.guardian.co.uk/uk/2010/mar/18/g20-protest-officers-not-disciplined-report
Can the police service confirm that this particular police officer has now been removed permanently from public order policing duties?
"Do you need a rupture for causation here?
wasn't the push in of itself enough to set off the chain of events?"
Yes. The allegation is he died from a bleed-out of 3l blood (roughly half the amount of blood in circulation) within the space of six minutes. A rupture is essential for the haemorrhage to have come from the policeman's shove.
The reason is essentially that there's no way of actually discrediting Dr. Patel's assertion that the fluid in the abdomen wasn't blood. Moreover, given that Ian Tomlinson had severe cirrhosis and possibly hepatic encephalopathy, finding 3l of ascites is not so fanciful as to cast an unreasonable doubt upon a defendant's guilt.
It's not the jury's job to say "well this piece of evidence does suggest a reasonable doubt, but we're going to disregard it."
As Anthony said, this is a matter of conflicting physical evidence. You can't cross-examine it.
If this were purely an issue of the actual facts I'd agree that no cross-examination is necessary, however the situation is fairly unique here in that you have Patel, who has been shown to be unreliable, being the main stumbling block to a consensus.
In this sense isn't it right that Patel could be cross-examined as someone who is unreliable?
Of course the question then comes as to what the point of doing so would be, it comes back to the evidential side of the case and discrediting Patel, if that's what happened on the stand, wouldn't prove the other pathologists were correct in their verdict that there was a direct causation.
But then there is also precedent here that suggests even if Patel is correct and that Tomlinson died of a heart failure of some kind, there is a case to be heard about the latent state of his poor health being exacerbated by the whole incident. Unity over at Liberal Conspiracy has a post about it...
http://liberalconspiracy.org/2010/07/23/16123/
A woman charged for manslaughter as she and her friend were judged to have aided the onset of a heart attack in an elderly man by blackmailing him in to giving them money.
Quite frankly I have seen cases where the police and CPS have successfully charged and jailed people for a) crimes whose evidence is solely sourced through video online and b) manslaughter where there wasn't a direct cause of death, and so whether the cross-examination bit would be relevant or not doesn't matter so much to me...there stands by previous actions of the CPS and court judgements no reason to suggest that there isn't a likely successful prosecution to be had by bringing this police officer to trial.
Can someone answer this? Apologies if it already has been answered.
If there are conflicting results from the second and further examinations, and due to the conflict, there can be no trial enacted, then what is the point of a second examination. The only reason would be to confirm the inital outcome.
I would have thought the answer to this is: think house sales and surveyors' reports:
one for the vendor, one for the purchaser and probably a third for the mortgage company.
They may all say the same thing, or they may not, but each requires an independent 'opinion'.
I cannot see how the medical evidence is contradictory, surely its flawed, mainly because it seems Dr Patel did not follow protocol correctly and has a record of not doing so. The only way to deal with this has to be a trial in front of a jury in my humble laymans opinion.
I think many of us non-lawyers have the impression that court cases involving expert witnesses can easily deterioriate into barristers battling to establish the relative credibility of expert witnesses rather than that of the evidence. Perhaps I've watched too many court room dramas, but the adversarial approach is surely bound to encourage that.
We certainly hear stories of prosecutors favouring those expert witnesses who support their cases and can be trusted to be able to put that effectively to a jury. The Sally Clark case notoriously depended on just such an evangelical and persuasive expert witness. Any vaguely competent statistician would have blown massive holes in the evidence, but these reservations were simply not taken credibly by the jury. This issue about a “battle of credibility of expert witnesses” appears to be an inevitable part of jury decisions – indeed even judges do not appear to be immune to this.
One of the few cases I recall where, unambiguously, expert witness in favour of a prosecution was unambiguously blown to pieces by an actual examination of the evidence was in the appalling Shirley McKie perjury case. There it was possible to demonstrate conclusively that the prosecution fingerprint evidence was wrong. I fear that this is not possible with more esoteric expert evidence (child physical abuse evidence is notoriously difficult in this respect; persuasive expert witnesses with evangelical zeal and little objective evidence have carried the day).
One also wonders what would have happened to Colin Stagg if a courageous judge had not so clearly condemned the behaviour of the police, the CPS and their expert witness. Barry George was not so lucky in anything approaching an objective analysis of the real evidence. His primary crime appeared to be to be "a bit odd".
Frankly what I would like to see out of this case is a clear indication by the judicial system on what the limits are to treatment of innocent bystanders. At the very least what we have here is ammunition to those who would characterise the legal system as heavily weighted in favour of those in authority.
Dr Brian Blood : 'They may all say the same thing, or they may not, but each requires an independent 'opinion'. '
Surely the DPP saying that there can be no prosecution due to conflicting 'opinions' means that no matter what each expert's opinion is, if they do not agree, then there can be no trial. In my opinion, if there is adequate doubt as to the result of the first autopsy, then the results from the subsequent experts should go before a jury.
pauljbird
The conclusions the of the first post-mortem might not be supported by the evidence, for example.
___
I follow the logic of those who say that Dr Cary and Dr Shorrock's conclusions were based upon a misreading of Dr Patel's notes, and because the primary evidence can no longer be analysed we (or a jury) therefore can't rely on their conclusions. Yet reading the CPS document it seems that even after having been informed of their misreading, Dr Cary and Dr Shorrock remained of the opinion that the cause of death was abdominal bleeding. I'd very much like to know why they've stuck to that view.
That said, I understand why the manslaughter charge wasn't brought. The decision not to prosecute for assault immediately, and not to prosecute for misconduct in public office at all, however, honestly make no sense to me.
@Shirley can help:
"@Ben
But practically, this strikes me as the sort of question that is very poorly suited to a jury. It necessarily involves evaluating contradictory medical evidence. Surely that would be extremely difficult for a lay audience.
I find your comment that lay people are not capable of weighing up evidence rather patronising.
We of the great unwashed are not all Heat! reading oiks, I'll have you know.:)"
I'm not an oik, I am a medic, but not a pathologist. And as such I can say with confidence that I would not want to be a juror trying to decide between conflicting opinions from two different pathologists.
It takes a degree of knowledge to recognise the limitations of that knowledge. I am not trying to be patronising in saying that, because I am happy to admit that, in many non-medical areas, I would probably not know enough to determine the limitations of what I did know.
Our contributors may like to read the following:
Misconduct in public office
http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-04909.pdf
Section 3 (Proposals for a statutory offence) makes reference to a report prepared by the Committee on Standards in Public Life, and particularly to paragraph 17 from that report which I think is particularly interesting.
"Misuse of public office can arise both as a result of actions taken and of failing to act. For example, in R v Dytham [1979] QB 722 a police officer was prosecuted for failing to intervene to quell a disturbance in which a man was beaten to death outside a night-club. The Lord Chief Justice, reviewing the common law offence, explained that the neglect of duty must be wilful and not merely inadvertent, and that it must be culpable in the sense that it was without reasonable excuse or justification. The Lord Chief Justice went on to explain that the element of culpability had to be 'of such degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.' Whether such a situation was revealed was a matter for the jury, and the Lord Chief Justice considered that this burden was no heavier than that of considering whether driving is dangerous or a publication obscene."
It does not appear to address the possibility, raised by JoK, of a single count of misconduct in public office could be used in place of an out-of-time prosecution for common assault.
I think that if it is thought proper to have a statutory time limit on bringing a charge of common assault then using 'misconduct in public office' as a way of over-coming that time limit is legally unattractive and probably disproportionate.
There's an awful lot of legal trick-language furring up this matter (is it any wonder lawyers and the CPS have such a bad reputation?!); I suggest it is plain to any viewer that the Policeman did something wrong, and a jury of laypeople would see that as clear as day. A jury's most valuable asset is their lack of any special legal training after all.
As a thought experiment to put the conflicting evidence in it's context (I mean as merely part of the evidence-in-toto), imagine presenting the video & series of events to a jury in the the times before detailed post-mortem medical examinations (and for goodness sake let's not be arrogant enough in the first place to think that our modern sawbones have the gift of perfect understanding of the mechanics of dying, never mind robustly prudent scientific method!).
There'd be sufficient causation assumed in the series & proximity of events themselves: if the medical evidence is in conflict then a juror may decide that none of it can be relied upon, effectively returning them to such a time prior to post-mortem medical examinations.
Put simply this would mean a juror might decide (and as far as this layman can see it), but for the policeman's assault, Ian Tomlinson wouldn't have died *when* he did.
To suggest otherwise is asking us to believe that Ian Tomlinson would have died when he did if he hadn't been touched and hadn't fallen over.
One can only conclude that the policeman's intervention at best (for the Policeman's case) hastened Mr Tomlinson's death and at worst, caused it. Whatever the victim's state of health, it is not allowed to hasten anyone's death in this country.
I am disappointed but unsurprised that so much money and time can be spent on educating so many lawyers at the CPS that not only do they miss the wood for the trees, they can debate in sufficiently arcane terms and at such debilitating length as to doubt the very existence of the forest.
"I think that if it is thought proper to have a statutory time limit on bringing a charge of common assault then using 'misconduct in public office' as a way of over-coming that time limit is legally unattractive and probably disproportionate."
This is, as Julius says, arcane. We shouldn't use a perfectly acceptable area of law to charge someone with something HE DID because we'd rather charge them with something else but...oops! time ran out!?
This whole case has become about credibility. Credibility of the police, credibility of the CPS and ultimately credibility of the legal system that is meant to protect us.
If this kind of um-ing and ah-ing over the legal attractiveness of charging a man that one way or another acted disproportionately to the extent that an assault happened on an innocent person is all that you think you have left then all credibility is gone as far as I can see.
Julius:
Your tactic amounts to the mantra that where an issue is so complicated that even experts disagree, twelve people with no training should solve the problem. It's deliberately ignoring evidence that points to a clear conclusion: it's madness.
Even in the days where there was no autopsy (the early 19th century), people were aware that 'series and proximity' did not amount to causation. Remember that -in a criminal trial- you are asking a jury to decide that it is beyond reasonable to doubt that the Ian Tomlinson incident was a coincidence. If all you have to go on is 'series and proximity' then it is reasonable to conclude that there might have been a coincidence: even by your early 19th century standard a prosecution would fail.
Earlier I asked why the CPS had not laid charges aginst the police officer involved before the time-limit had expired and even though there was a possibility for bringing more serious charges in the light of further investigations.
The answer to this may lay here:
"CASE NAME: R v Brentford Justices ex parte Wong (1980) 73 Cr App R 67
ISSUE / SUMMARY: It is likely to be a misuse of process to lay a so-called protective information or to cause a summons to be issued in order to comply with a statutory time limit for the start of proceedings, if a decision about prosecution has not been reached by that time. In this case, the prosecutor deliberately delayed service of a summons after an information was laid until the decision about prosecution was made."
This comes from: http://www.cps.gov.uk/legal/a_to_c/abuse_of_process/
There is some confusion over the standard of proof required here. It is not enough to show that Dr. Patel was unreliable, but that his conclusions were absolutely wrong. The problem here is that even with the other two pathologists' reports, that is not possible. Like I said above, there is additional evidence supporting Dr. Patel's analysis. There's a danger of overemphasising playing the man here: just because someone is unreliable or incompetent doesn't mean they are always wrong of lying. The problem the CPS have is that evidence of incompetence is not enough to discredit findings that are medically plausible. Leaving it to a jury to cherry-pick the pathologist they prefer is not how a criminal trial works: if there is a plausible choice between evidence, the jury's hands are tied: they must acquit the accused.
Surely autopsies and coroner's reports etc are irrelevant. To be honest, whether the poor man died or not is irrelevant.
Look at the video. That's all. Whether the victim was uninjured, broke a bone, or died is unimportant... sorry, I don't mean that: it is important - of course it is. But if I punch someone in the street and they stumble backwards and fall under a bus then to use as a defence that they might have fallen under the bus anyway is crazy. The fact is I punched them.
Maybe I shouldn't be charged with manslaughter, but I should certainly be charged with assault.
The policeman hit Mr Tomlinson, and pushed him over.
Very shortly afterwards Mr Tomlinson collapsed and died, either from heart failure, or internal bleeding.
Several crimes were committed. There was no excuse.
The crimes were common assault, misconduct in public office, assault causing abh (almost definitely) assault causing gbh (possibly) manslaughter (possibly)
its too late for common assault, but not for any of the others.
Whether or not it is appealing to charge with misconduct in public office, surely its more unappealing to allow a crime of such a blatant nature to go unprosecuted, giving police permission to attack anyone within the vicinity of a demonstration. Surely the public office offence is actually very apt, as the policeman was clearly abusing the position of power he was in, relying on the protection of his uniform to commit a violent crime.
I don't think its the prosecuting authority's job to bring only cases in which no jury could possibly have a doubt. Does anyone know what their threshold is supposed to be for decisions to prosecute?
I am virtually certain that if the policenman had not been a policeman, there would have been abh,gbh and manslaughter charges already. Is there supposed to be a different standard?
Proof of causation (act causing a death) is NOT purely a medical question but has to be decided on the entirety of the evidence. We know that (a) Mr T was struck with a baton ("patterned bruising"); (b) Mr T was forcefully pushed from behind by this officer; (c) Mr T fell to the ground and his fall appears to have been a heavy one; (d) he was not offered any assistance by the Police Officers present; (e) he was assisted by a member of the public; (f) he walked away.
Here we seem to have a GAP until he collapsed and died.
Would that, together with the conflicting PM reports, enable a jury to conclude beyond a reasonable doubt that the officer's action caused Mr T's death?
We will never know since there will be no trial. Had all available witnesses (including the pathologists) been called and cross-examined then other information may well have emerged.
For my part, I do not entirely see wht a charge of ABH (s.47) could not have been brought though the CPS stated that they followed their usual charging guidance and that the injuries were not sufficiently serious to merit ABH. If that is so, then it is time the guidance was altered.
I entirely agree that a misconduct in public office charge could have been brought. Like you, I think the CPS has misdirected itself in law on this.
It seems that the Attorney-General has found nothing wrong with the CPS view of this case.
The matter now moves to disciplinary proceedings for misconduct. The IPCC can order that these be heard in public. I wonder whether they will ?
Please see:
http://obiterj.blogspot.com/2010/07/ian-tomlinson-death-disciplinary.html
The problem with a charge of ABH is that, although there is some authority to suggest that "minor bruising" (the only 'provable' injury from the PC's action) could constitute ABH, it would have a rather unfortunate knock-on effect in that it would effectively remove the defence of consent from all but the most technical common assaults.
Following R v Brown, any offence against the person that is ABH or above does not have consent as a defence. The result would be that if you grabbed the arm of someone who bruised easily (with their consent), you'd have committed an offence that carries a maximum five year sentence and severe repercussions. Peversely, to suggest that the police should be subject to a lower charging standard would be to argue that the police should not be equal in the eyes of the law.
is it flogging a dead horse to still talk about prosecution then?
The CPS dont seem to be following their own code, as the standard for a decision to prosecute in the code appears to be balance of probabilities in favour of a conviction, rather than the criminal standard.
is a judicial review of the decision a possibility?
other aggravating factors are also mentioned in the code as weighing in favour of a prosecution:imbalance of power, motivation by prejudice of various kinds, misuse of authority, victim family impact: the code address is:
http://www.cps.gov.uk/publications/docs/code2010english.pdf
Hijacking the thread somewhat...
The CPS statement says:
"[The DPP] is satisfied that the CPS acted as quickly as was consistent with the thorough and careful review of the evidence that was necessary."
But the opportunity to bring a charge of common assault "timed out", which is clearly unsatisfactory. Does this mean that there should be an extension to the 6 month limit in cases involving allegations of assault by police officers? I restrict the question to cases involving allegations against police officers, as these seem to be the only kind of case where delays of this length occur, or am I wrong about that?
BG - What about the fact that the second pathologist has stated that the CPS downplayed the extent of the bruising left by the baton. He maintained that is was easily extensive enough to warrant an ABH charge.
Joseph K.
@DrJG
I don't think a jury necessarily will be looking at the conflicting evidence in a way that requires them to second guess pathologists on their medical findings. What really needs examining (and cross-examining) is Dr Patel's credibility. There's not only that he's been the subject of serious allegations regarding the quality of his work but the circumstances of his being appointed to do such a potentially controversial case, given the previous.
There is also the question of why his initial notes (April 3) which referred to the fluid as "intraabdominal fluid blood about 3l with small blood clot" were changed (April 6) to “intraabdominal fluid with blood". Now, I read the first one as referring to fluid blood as opposed to clotted blood, hence the reference to a small clot. I don't see that as "ambiguous" (as some reports have it), which is not the same as saying it is completely impossible for anyone to understand it differently than I do, only that I don't think it is just as likely the words mean blood as that they mean some other fluid with a bit of blood. BTW, "ambiguous" does not mean that something might be taken a different way but that two different meanings are equally likely.
So, to me, the second version of Dr Patel's notes is very different from the first and the change, not a mere 'clarification' of words that mean the same thing. In between those notes, did he re-examine the fluid? It seems not (he had discarded the fluid). He did not in that time run any tests that would change anything (or any tests on it at all, it appears).
However, in between the two versions of Dr Patel's notes, the Guardian had reported (April 5) that Tomlinson had been hit by police.
That a change that rules out whoever shoved Tomlinson to the pavement as being responsible for his death occurs after it had been published that there was evidence the person who shoved Tomlinson was a police officer is at least something that needs to be closely examined.
I those circumstances, Dr Patel's credibility and thus the weight a jury might put on his medical conclusions do not depend solely on a layman's view of the technical medical evidence but would depend upon his explanations for his actions and any contradictions (or even concessions) that might come up in cross-examination under oath.
End of Part 1
I don't have a clue about any of the intricacies of the law detailed by other posters, but it does appear that they may have obstructed any real justice in this case. Public perception is that this one big, stinking, cover-up - definitely by the police (false press statements for 4 days, IPCC (attempting to keep video evidence from public view) and DPP(Simon Harwood escapes any charges). You can probably add Dominic Grieves to the list of people paid for by the public but not serving them.
It would be really good to see answers to Dr Brain Blood's outstanding questions, but we know that isn't going to happen.
Part 2
I think that a reasonable jury, properly instructed by the judge, might as a finding of fact conclude that Dr Patel's conclusions and testimony could not be relied upon, preferring the conclusions of the other pathologists supported by Dr Patel's original notes made before police involvement was alleged. That finding of fact by the jury does not have to be beyond reasonable doubt, which applies to the Crown's case as a whole, but then if they find Dr Patel not to be credible on the nature of the fluid and on the conclusion, then there would be no reasonable doubt raised merely by Dr Patel's differing conclusion.
Without making an assessment of Dr Patel's credibility, I don't see how one could conclude that the likelihood of a jury reaching that conclusion was large or small and I don't think the CPS are the appropriate people to decide on Dr Patel's credibility. A jury is, though I'd not object to a judge as trier of fact (I'm in Canada where non-jury criminal trials are the norm).
I should make clear that I don't know if Dr Patel was right in his conclusions and was right in his changing his report of the fluid (we've all looked back at something we've written and gone 'Crap, that's not what I meant to write at all.'). He may be entirely cleared of all the allegations made against him in the GMC and any other venue. I'm not in a position to know, but I think that the situation raises questions that need to be subject to the most searching examination given that there's a dead man involved in this.
Long time fan of Horace Rumpole that I am, I think cross-examination under oath of Dr Patel and the other pathologists would be the best, most transparent way of conducting that searching examination.
the rather prolix Mike from Ottawa
I think it's now somewhat clear why a prosecution for manslaughter, etc would fail, given the evidential difficulties (not one pathologist found rupture, as we have read, which we're told is a pretty clear indicator of causation in such cases. I know more about the law than I do the pathology, so let's take that as read, for a moment).
It seems to me that, regardless of the seriousness of the situation, and the public interest in it, the CPS are unable to charge misconduct in a public office. Whilst ObiterJ makes some excellent points, I cannot agree that the CPS misdirected themselves in law on this ocassion. It cannot be that we can allow the CPS to 'fit up' someone for the sake of bringing a charge. Doing so would lead to an abhorrent position wherby the CPS were not compelled to conduct themselves properly at all times, knowing that they could simply later 'find another offence that fits'.
Regrettably, I find the decision of the CPS and DPP to be legally sound and they weren't really left much option. Greater questions surround the choice of pathologist and the delay and time for the IPCC investigation, etc and one would hope that they are left to an inquest, where perhaps a narrative verdict might be recorded. One also hopes, like ObiterJ, that the IPCC disciplinary hearing might be held in public as a way of restorting public confidence in the police service.
Whether Mr Grieve might like to change the law on complex assualt cases so that timelimits are reviewed by a judge on application by the CPS, remains unclear. I hope he will.
--mulhuzz
I think that this whole issue is now becoming marred in legal symantics. Surely the important thing now is that justice appears to have been done to the public at large, people are not as stupid as some seem to think. This is the latest in a series of incidents in the public's mind starting with Blair Peach, and running through many years to the likes of Sean Rigg and Jean Charles Menezes, the difference is that it was filmed, and that now we have the internet . There is clear evidence in my mind that not only was misinformation deliberatly disseminated initially, for example that protesters rained missiles on the police as they attempted to help,then the choice of Patel when he had a record of finding results that the Police favoured and was being investigated by the GMC....surely this should have some kind of bearing on the possibility overturning the six month prosecution rule for assault??
By the way from what I understand of the bruising it equates to ACTUAL bodily harm anyway. Fact is if the Police and the judicial system want to retain confidence in the public's mind, they need to find a way to dispense justice in this case. That means a PROSECUTION not some kind of internal misconduct action.
@ Dr JG
I appreciate what you are saying and I am not saying it's easy.
BUT - taking your argument to its logical conclusion would mean the end of a trial by Jury.
Also, I do think that there are plenty of laypeople out there who do understand that science cannot always offer a definite answer and who are aware of the limitations of their knowledge.
It is the expert's job to explain their positions - as Einstein(?) said, if you cannot explain it simply you do not understand it well enough (or something like it)
Not to mention the many many cases, where experts got it wrong, immediately springing to mind the Cot Death Cases, where the expert had a tenuous grasp on statistics at best....
So, point taken, but I stand by my original observation that the general public should not be patronised.
BG - You are wrong about R v Brown, ABH Can be consented to if the consent needed is for a good reason, such as playing sports or medical treatment.
Joseph K.
@MikeFromOttawa
Bear with me- I'm not a doctor.
But, presuming Dr Patel's credibility is destroyed, is it possible to conclude that Mr Tomlinson was killed based purely on the evidence of the latter pathologists? Is the fact that they haven't seen the abdominal fluid an opening for reasonable doubt? The latter pathologists can't even claim to have seen his notes as they too have no credibility.
We're left with two reports that are missing analysis of a major piece of evidence. They seem reasonable to doubt.
@Joseph K
I'm not wrong about Brown; those "good reasons" are exceptions to a general rule that consent is unavailable as a defence. If we were to make ABH anything involving light bruising or above, then we'd probably have to see an expansion in that area of law that would be big, messy and unjust. It's already a messy area (see, for example, the controversy over Brown), given that such a law inherently limits the freedom of consenting adults, in a manner that is arguably inconsistent. If we limit the defence to anything but the most basic of assaults and batteries, we're going to end up in a legal minefield.
Interesting point though on the second pathologist's report re: the baton injury - do you have a link to a source on that I could look at?
@Lloyd Jenkins
No, it wouldn't be possible to convict solely on the evidence of the later pathologists. First, the subsequent pathologists' findings were dependent on the first: if you throw out Dr. Patel's evidence, you have to throw out theirs as it is "fruit of the poisonous tree" (in the metaphorical, rather than legal, sense). Second, Dr. Patel's alleged unreliability (and we should remember that, at present, these are only allegations) doesn't automatically mean his conclusions are wrong, for the reasons given above.
@Andrew McLean: this delay would have happened if PC Harwood had simply been "Mr. Harwood" and did the same thing. The problem with fiddling the time limit is that assault and battery are very easy offences to commit. Brush past someone on a train and you have committed the actus reus of common assault, and unless it was the most unforeseeable accident, you probably have the mens rea as well. The only reason you haven't committed the offence is because you have a defence of consent. A time limit needs to be imposed as some sort of filter. In this case it appears that that system has failed to achieve practical justice.
I'm not sure though that it would be wise to extend the limit in cases of police assaults, given that policemen in the course of their duties have to regularly engage in physical contact with people who would love to wreck their day with criminal proceedings. They are as in need of a filter as anyone else. The difficulty may be in the calculation of the six month period in cases such as these where other charges are possible and warrant serious investigation, rather than the fact the accused was a policeman.
@Joseph K
I'm not wrong about Brown; those "good reasons" are exceptions to a general rule that consent is unavailable as a defence. If we were to make ABH anything involving light bruising or above, then we'd probably have to see an expansion in that area of law that would be big, messy and unjust. It's already a messy area (see, for example, the controversy over Brown), given that such a law inherently limits the freedom of consenting adults, in a manner that is arguably inconsistent. If we limit the defence to anything but the most basic of assaults and batteries, we're going to end up in a legal minefield.
Interesting point though on the second pathologist's report re: the baton injury - do you have a link to a source on that I could look at?
@Lloyd Jenkins
No, it wouldn't be possible to convict solely on the evidence of the later pathologists. First, the subsequent pathologists' findings were dependent on the first: if you throw out Dr. Patel's evidence, you have to throw out theirs as it is "fruit of the poisonous tree" (in the metaphorical, rather than legal, sense). Second, Dr. Patel's alleged unreliability (and we should remember that, at present, these are only allegations) doesn't automatically mean his conclusions are wrong, for the reasons given above.
@Andrew McLean: this delay would have happened if PC Harwood had simply been "Mr. Harwood" and did the same thing. The problem with fiddling the time limit is that assault and battery are very easy offences to commit. Brush past someone on a train and you have committed the actus reus of common assault, and unless it was the most unforeseeable accident, you probably have the mens rea as well. The only reason you haven't committed the offence is because you have a defence of consent. A time limit needs to be imposed as some sort of filter. In this case it appears that that system has failed to achieve practical justice.
I'm not sure though that it would be wise to extend the limit in cases of police assaults, given that policemen in the course of their duties have to regularly engage in physical contact with people who would love to wreck their day with criminal proceedings. They are as in need of a filter as anyone else. The difficulty may be in the calculation of the six month period in cases such as these where other charges are possible and warrant serious investigation, rather than the fact the accused was a policeman.
@Joseph K
I'm not wrong about Brown; those "good reasons" are exceptions to a general rule that consent is unavailable as a defence. If we were to make ABH anything involving light bruising or above, then we'd probably have to see an expansion in that area of law that would be big, messy and unjust. It's already a messy area (see, for example, the controversy over Brown), given that such a law inherently limits the freedom of consenting adults, in a manner that is arguably inconsistent. If we limit the defence to anything but the most basic of assaults and batteries, we're going to end up in a legal minefield.
Interesting point though on the second pathologist's report re: the baton injury - do you have a link to a source on that I could look at?
@Lloyd Jenkins
No, it wouldn't be possible to convict solely on the evidence of the later pathologists. First, the subsequent pathologists' findings were dependent on the first: if you throw out Dr. Patel's evidence, you have to throw out theirs as it is "fruit of the poisonous tree" (in the metaphorical, rather than legal, sense). Second, Dr. Patel's alleged unreliability (and we should remember that, at present, these are only allegations) doesn't automatically mean his conclusions are wrong, for the reasons given above.
@Andrew McLean: this delay would have happened if PC Harwood had simply been "Mr. Harwood" and did the same thing. The problem with fiddling the time limit is that assault and battery are very easy offences to commit. Brush past someone on a train and you have committed the actus reus of common assault, and unless it was the most unforeseeable accident, you probably have the mens rea as well. The only reason you haven't committed the offence is because you have a defence of consent. A time limit needs to be imposed as some sort of filter. In this case it appears that that system has failed to achieve practical justice.
I'm not sure though that it would be wise to extend the limit in cases of police assaults, given that policemen in the course of their duties have to regularly engage in physical contact with people who would love to wreck their day with criminal proceedings. They are as in need of a filter as anyone else. The difficulty may be in the calculation of the six month period in cases such as these where other charges are possible and warrant serious investigation, rather than the fact the accused was a policeman.
So if the CPS try to prosecute using just Patel's evidence they will fail to prove beyond a reasonable doubt because of that evidence.
If the put forward all the pathologists then questions like "did you find an internal rupture that would cause internal bleeding?", "No? Well did you find any blood in his body cavity?" will introduce reasonable doubt automatically.
The CPS can't cross examine their own witnesses and it's not in the defences interest to cast doubt on the Patel evidence in cross.
It may not be justice but it seems to be law? Not being able to prove the case beyond a reasonable doubt is good cause to not proceed with it in the first place.
If all three pathologists noted the injury consistent with a baton strike then ABH seems worth perusing.
As we keep looking at misconduct in a public office does the position of coroners pathologist count as a public office and if so would the disposal of the "fluid" count as misconduct?
This situation just deepens. The Coroner has been under pressure to stand down and this has now been taken up by various MPs who are asking for a Judge to be appointed to conduct the inquest. All High Court Judges are ex-officio Coroners. Seems like a sensible move to me.
See
http://www.bbc.co.uk/news/uk-england-london-10788750
@Lloyd Jenkins,
"Bear with me- I'm not a doctor."
Me neither, it's way too icky.
"But, presuming Dr Patel's credibility is destroyed, is it possible to conclude that Mr Tomlinson was killed based purely on the evidence of the latter pathologists?"
Credibility is not necessarily an all or nothing thing. Each statement or conclusion can be subject to a different finding as to its credibility. A jury might decide there was no reason to doubt that Dr Patel knew what blood looked like when he saw it and thus that the original notes referring to "intraabdominal fluid blood about 3l with small blood clot" were credible and accurate. That same jury might also decide that Dr Patel's explanation for why he changed his notes 3 days later did not hold up, that the changes were prompted by the new knowledge of the police involvement and that he'd then wanted to buttress his finding that death was due to heart attack unrelated to the fall.
So, a jury might conclude the only credible part of Dr Patel's evidence was his original notes describing the fluid as blood and reject entirely his opinion on cause of death and accept the opinions of the other pathologists.
"Is the fact that they haven't seen the abdominal fluid an opening for reasonable doubt? The latter pathologists can't even claim to have seen his notes as they too have no credibility. We're left with two reports that are missing analysis of a major piece of evidence. They seem reasonable to doubt."
As outlined above, the original notes might be found to be accurate while later changes and Dr Patel's opinion on cause of death might be found not credible.
To me, the issue with Dr Patel and the fluid is not that he was simply incapable of telling blood from another fluid merely stained with blood (no reason to think that) but the question is whether or not he was merely 'clarifying' his original notes when he changed them to read “intraabdominal fluid with blood". If the jury were to conclude that Dr Patel was merely clarifying his language, then, yes, the other pathologists' opinions would be unsupported by evidence of serious internal bleeding and you could not get a conviction on manslaughter because there'd be no causation.
However, if the jury had decided Dr Patel's original notes referring to "intraabdominal fluid blood about 3l with small blood clot" were credible, then the jury could accept the opinion of one of the other pathologists, based on the presence of 3 litres of blood in Tomlinson's abdominal cavity, that Tomlinson died of internal bleeding caused by hitting the pavement.
I'm influenced by the fact police officers' notebooks and other notes made contempraneously with the events they describe (or very near them) have a special status as evidence, in that they're made at a time when other information that might change an initial assessment hasn't come up yet, when people haven't had a chance to concoct stories or to check with other witnesses to get their stories straight. That's why if a police officer is to testify, the Crown will have to (at least here in Canada) disclose to the defence the part of the officer's notebook dealing with the case. If the officer's testimony differs from their notes on some point, it's likely it is the notes that will be believed. With that in mind, my prejudice would be in favour of the original notes and I'd view very skeptically any subsequent changes unless they came with a very strong explanation. The way to decide that would have been to have a trial and see what a jury comes up with after seeing the witnesses under cross-examination on oath.
All of this, of course, being speculation, since we don't have jury findings on the credibility of Dr Patel's opinions or notes to go either way and others may read Dr Patel's original note differently than I do.
Clearly, brevity is not the soul of Mike from Ottawa
BG – It would seem that I misunderstood you re R v Brown (difficult case, probably decided differently today, apart from fifteen year old boy, interesting to note that now they would probably be in more trouble over the video)
I thought I had a better reference than this but this is the only one I found at short notice;
www.guardian.co.uk/uk/2010/jul/22/ian-tomlinson-g20-cps-ruling
“But a direct challenge to the CPS also emerged last night from Dr Nat Cary, the second forensic pathologist who examined Tomlinson's body. He told the Guardian prosecutors made a factual error in dismissing a charge of actual bodily harm.
He said his report contained clear evidence that Tomlinson suffered injuries sufficient to support an ABHcharge. The CPS dismissed the injuries as "relatively minor" and thus not enough to support a charge of ABH in its written reasons given to the family.
Cary, speaking for the first time about the case, said: "I'm quite happy to challenge that. The injuries were not relatively minor. He sustained quite a large area of bruising. Such injuries are consistent with a baton strike, which could amount to ABH. It's extraordinary. If that's not ABH I would like to know what is."”
Joseph K.
Regarding waiting three days then changing his report.
You do a piece of work on Friday and go home, you return to work on Monday and on re-reading it you discover a typo. By losing a word from a sentance you have totally changed it meaning. You fix the error and move on, Friday the 2nd to Monday the 5th may well be 3 days but it's also next working day.
There's an emergency you come in and work on a Saturday. As your day off has been cancelled you take Monday off in Leiue and your next working day becomes Tuesday. At which point . . . 3rd to the 6th is three days but for you it was next working day.
I'm not suggesting that this IS what happened or even what Dr Patel is claiming happened but it's perfectly plausible. Anyone who's never found an error in their dictated work is either not proof reading hard enough or needs to buy whoever does their transcription a seriously big gift.
@Mike: he didn't change his notes until after a year later, which discounts the "oh dear they're charging someone I'll make it tough for them" theory. Even assuming you show he was a less-than-credible witness (and that is probably not possible on the evidence; the allegation is incompetence, not dishonesty), you could still get an expert witness in who would say that, despite the allegation of incompetence, his findings were still plausible. This appears to be what the CPS have done given that they consulted additional experts.
Moreover, it would be very hard in practice to challenge Dr. Patel's credibility: as said above, the Crown can't cross-examine their own witness (and they'd have to call him as a witness), and the defence wouldn't want to.
@Joseph K; I'll have a look, but it's hard to say whether that would in fact meet the charging standard given that it was a single bruise. I remember when I was attacked in the street that the police told me the only reason the charge in my case could be ABH was because I had multiple cuts as well as a couple of bruises.
Well don't I feel the fool.
Please disregard my 28 July 2010 20:35 post I totally failed to note the change in the YEAR on the two dates I was talking about.
/blush
Labrat - nonetheless your general point about proofreading is sound. Given that when the report was originally written nobody realised he'd been hit, is is entirely possible that he didn't realise his typo until the CPS came back to him about his original report.
Plus it would be beyond even Dr. Patel's alleged incompetence to notice 3l of blood in the abdomen and not conclude there had been a haemorrhage.
@Lloyd Jenkins
My idea of weighing evidence, finding it inconclusive and therefore looking at what other evidence offers might indeed be madness, however if you're right then you're asking us to believe that Mr Tomlinson would have fallen over and died at the precise moment he did if he had never crossed the path of PC Harwood.
I can see why the CPS have chosen to avoid putting this to a Jury. I can't think of anyone but the most contrary who'd assert this as being credulous, especially when the Old Bailey serve such awful sandwiches in their jury rooms (the pressure of time spent debating those small, overheated rooms produces effects akin to Occam's razor as time grinds by). The argument looks to me like this: did PC Harwood's intervention hasten the death of Mr Tomlinson?
Also, 'madness' would be a great description of the situation we are already actually in: several wrongs were committed by PC Harwood in plain sight of colleagues and the public, an innocent man was beaten, and died shortly afterwards. Yet nobody will be punished?
And here we are filling pages and pages of debate, subtle and nuanced enquiry and assertion, with even 'normal' people like myself (with little legal background or education - and I use the word 'normal' deliberately, lest an arcane profession should think itself more important than those they serve) engaging with the frontiers of legal thinking on brilliant blogs such as this one, and yet...
ALL this debate and discussion has a proper place in which to take place, a place tried and tested for centuries, a place with rules and the highest standards and generally a good track record of delivering what the legal system exists to deliver: the restoration of justice by civilised means and as such, the very embodiment of the social contract. This place is called a Crown Court, with a Judge and Jury.
We have all been denied justice by a tiny group of CPS lawyers and their apologists more interested in fine arguments than justice. This looks like an attack on trial-by-jury that makes the last Government's efforts look amateur by comparison.
With the CPS' decision, Madness is what we have instead of Justice.
2 Afterhtoughts:
Didn't the first post-mortem suggest a heart attack as the cause of death? And how pray, in the context of a beating and a very nasty fall just minutes before, can said heart-attack be described as 'death by natural causes'?
Also, Yet to be answered are the as yet unmentioned charges of misconduct for all the policemen standing next to PC Harwood at the time, witnessed the beating, who ignored his suffering and then claimed to see nothing, lied about the facts and covered up the truth for days until forced to accept a different version by video evidence. This is behaviour we might expect from a street gang, not a professional police force. Does anyone fancy a wager that the CPS won't deign to investigate charges on those grounds, with a view perhaps to graciously allowing a jury to make the decisions it’s supposed to be allowed to make?
@Julius - you make good points about testing the case before a jury but our law has never been that ANY case is so tested. It has always depended on the evidence and whether there is a "case to answer".
I am old enough to recall attending committal proceedings in magistrates' courts where the prosecution witnesses were called and tested and where the magistrates could rule that there was "no case to answer".
I modern times the decision to weed out weak cases is entrusted to the CPS and it is to the credit of the CPS that they actually published their decision.
If a case gets to trial, the prosecution evidence has to "pass the judge" before it is allowed to be considered by the jury.
What has been interesting about the many comments on this blog is that many experienced lawyers have expressed opinions in favour of a prosecution though for misconduct in public office or for assault occasioning actual bodily harm rather than manslaughter. Causation was always going to be a major issue if a manslaughter case had been preferred.
I have also wondered about the conduct of all those other officers. It is almost as if they saw and heard nothing !! In my opjnion, they are all in breach of the Standards expected of professional Police Officers. Please see my blog for a post on those standards.
http://obiterj.blogspot.com/
Thanks @ObiterJ
I've heard of the days when the magistrates were called 'Police Courts' and how awful they were if you were black, poor, ill-educated, ugly, foreign etc etc (I think you get the drift). Looks like the name has changed but nothing else when it comes to protecting the nasty bullies in uniform.
*sits glumly with chin in hands and wonders what's the point of the legal system at all if it's going to stitch up important cases like this*
I'll check out your blog on the other officers and hope that someone doesn't take the law into their own hands regarding Tomlinson, but lord knows, whoever's hands the law is in now, it ain't looking good.
@Julius
You -like the manslaughter case you demand- lack decent evidence of causation. Mr Tomlinson was pushed and hit. He later died. As rational people, we have to accept that one didn't necessarily lead to the other. People are innocent until proven guilty, and there is just not sufficient proof that the fall caused Ian Tomlinson's death.
To answer your question ("did PC Harwood's intervention hasten the death of Mr Tomlinson?"): the evidence seems to point to 'no'. No amount of cheap innuendo ("can said heart-attack be described as 'death by natural causes'?") There isn't evidence that can be read to convict him 'beyond reasonable doubt'. Putting the case in front of a jury risks a miscarriage of justice and wastes public resources for no gain.
In short, the legal system's evolved over centuries. This isn't an 'attack on trial by jury'- it's a reflection that trials are expensive as hell, and can give the wrong result. The legal professions (your "servants") have thought this through. Maybe you could do them the same courtesy?
*No amount of cheap innuendo will change that.
Obiterj,
In relation to the police officers who stood by and did and said nothing.
It is not clear what you expect them to do - they are holding a line ina public order situation, there is no facility for two or three if them ti just drop out and pick someone up, dust him off and walk him away. Maybe there should be but that is fir a discussion on public order tactics.
As for what they said, we will never know, it may have formed part of the evidence for the cps decision that the actions of the officer were unlawful. It may form part of the reason for the gross misconduct hearing. Other officers from that serial did come forward and identify themselves as soon as the footage was released.
Tang0
There was a programme about this on Radio this evening - see http://www.bbc.co.uk/programmes/b00tdr1v .
It seems that there is certainly reasonable doubt as to whether IT died as a result of the assault on him. I can see that this would make a trial on a manslaughter or murder charge unsafe.
Why do I say this? Well, it seems he had liver cirrhosis, and so it's quite feasible that he had a large volume of ascitic fluid in his abdomen. His liver might also have been very fragile, so minor trauma - that would be harmless to a healthy person - could damage it.
On the other hand, the reasons for not prosecuting the officer involved for assault causing actual bodily harm - given the bruising the PM showed, caused undoubtedly by his being struck on the leg - seemed to be that to do so would be to go against CPS guidelines, which exist "for the sake of consistency".
If I understand this correctly, this means that the guidelines say that police officers who assault innocent passers-by for no reason causing ABH should not be prosecuted. If that is the case, then, rather than excusing the situation regarding IT, this is a hugely more worrying and scandalous situation.
COI - I was driving, so I might have misunderstood part of the programme. Do "listen again" on BBC iplayer and form your own conclusions.
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