In a detailed letter setting out its reasons, the CPS sought to defend its position but admitted that there was sufficient evidence to show the actions of the officer, known as PC “A” – seen striking Tomlinson with a baton then shoving him to the ground in the footage – could constitute assault. But a legal technicality meant that not even a minor charge could be brought, the CPS said.
It said: “The CPS concluded that there is sufficient evidence to provide a reasonable prospect of proving that the actions of PC ‘A’ in striking Mr Tomlinson with his baton and then pushing him over constituted an assault. At the time of those acts Mr Tomlinson did not pose a threat … There is sufficient evidence to provide a realistic prospect of proving that his actions were disproportionate and unjustified.”
Despite this conclusion, Starmer said common assault charges have to be brought within six months of an assault.
Other possible charges could not be brought, lawyers concluded, because of conflicting evidence from pathologists.
“If the push caused Mr Tomlinson’s death, the appropriate charge would be manslaughter, not assault occasioning actual bodily harm,” Starmer said.
“The separate strike with the baton was also considered. It had left patterned bruising. But where injuries are relatively minor, as these were, the appropriate charge is common assault…
“Common assault does not require proof of injury, but it is subject to a strict six-month time limit. That placed the CPS in a very difficult position because enquiries were continuing at the six month point and it would not have been possible to have brought any charge at that stage.”
Mohmed Patel, also known as “Freddy”, the pathologist asked to examine Tomlinson by City of London in the hours after he died, concluded that he died of “coronary heart disease”.
Two subsequent autopsies, conducted on behalf of the Independent Police Complaints Commission (IPCC), found Tomlinson died from internal bleeding.
The CPS’s report said that the contradiction between the pathologists’ evidence meant that a successful prosecution would be impossible. “As the sole medical expert who conducted the first post mortem, Dr Patel would have to be called to trial as a prosecution witness … As a result, the CPS would simply not be able to prove beyond reasonable doubt that Mr Tomlinson’s death was caused by PC ‘A’ pushing him to the ground,” it concluded.
Lawyers for the CPS assessed other possible charges in the report, including assault occasioning actual bodily harm, the offence of misconduct in public office and the most serious charge of manslaughter. But on each occasion, they concluded that the contradictory medical evidence meant prosecutors “would simply not be able to prove beyond reasonable doubt that there was a causal link between Mr Tomlinson’s death and the alleged assault on him.”
The decision was made by Stephen O’Doherty, a deputy director of the CPS Special Crime Division and lawyer, who has previously faced criticism for the decision not to prosecute a police officer following the death of Jean Charles de Menezes, the innocent Brazilian was shot seven times in the head by two police marksman at Stockwell Tube station.
Advice on the decision was taken from Tim Owen QC, one of the leading lights in the prestigious Matrix Chambers, which specialises in police and criminal law. Owen, married to the actor Jemma Redgrave, has appeared in more than 35 appeals to the House of Lords or Supreme Court, specialising in human rights issues.
The material was also reviewed by Starmer, who became Director of Public Prosecutions in July 2008. Starmer has been a vocal critic of the government. In 2003, on the eve of the invasion of Iraq, he wrote of the government’s problem of credibility and coyness about the legal grounds for the war.
The family of Ian Tomlinson today branded as a “cover-up” the decision not to bring a single criminal charge against a police officer who attacked the newspaper seller before he died.
The family were told of the Crown Prosecution’s decision this morning by the director of public prosecutions, Keir Starmer QC, a former leading human rights lawyer.
Tomlinson’s stepson Paul, flanked by his mother, Julia, Ian’s widow, said: “It’s been a huge cover-up, and they’re incompetent.”
Tomlinson died following G20 demonstrations on 1 April 2009 in central London. The official account that he died from a heart attack was undermined when the Guardian obtained video footage showing a riot officer striking the 47-year-old with a baton and shoving him to the ground shortly before he collapsed and died.
Starmer said there was “no realistic prospect” of a conviction because of a conflict between the postmortem examinations carried out after Tomlinson’s death last year.
Speaking outside the CPS headquarters, Paul King said of the meeting with Starmer: “He admitted the cop assaulted our dad … why hasn’t he charged him? Another copper has been let off.”
He criticised the time it has taken – 16 months – for the CPS to reach its decision.
In a detailed letter setting out its reasons for not bringing charges, the CPS said the actions of the officer could amount to assault.
But the CPS said it could not bring a manslaughter charge against the officer, named in media reports today as PC Simon Harwood, because the conflicting medical evidence meant prosecutors “would simply not be able to prove beyond reasonable doubt that there was a causal link between Mr Tomlinson’s death and the alleged assault on him”.
The family solicitor, Jules Carey, said the decision was a disgrace and the family would be considering whether they could mount an appeal.
“Clearly it is a disgraceful decision,” he said. “We now need to find out if there has been a lack of will or incompetence, and frankly there needs to be an inquiry into that. We will be looking at whether the decision can be reviewed, but that is a matter for another day.
“Their dad died of either a heart attack or internal bleeding, whichever evidence you prefer, but no one has been prosecuted and that is a disgrace.”
Deborah Coles, of the group Inquest, which supports families who have lost loved ones at the hands of police, said: “If you can’t get a prosecution in this case, what hope is there?”
Coles said bungling at the start of the investigation had cost crucial evidence. She said the alleged mistakes included the decision by the Independent Police Complaints Commission to hand initial responsibility for the inquiry to City of London police. She said: “It was not treated as a potential crime from the outset and so evidence was lost.”
Jenny Jones, a Green party member of the Metropolitan Police Authority, said: “This is yet another outcome from the CPS that satisfies nobody and does not even satisfy the criteria of natural justice.
“It definitely will not satisfy the family, particularly as it is even too late for the assault charge to be brought against the officer.
“It is not good for the officer either, because he has not been acquitted and has been clearly shown to be someone who behaves aggressively. I hope at the least the police are going to hold him to account. Misconduct alone is not really enough.”
A spokesman for Boris Johnson, the London mayor, who has responsibility for the Metropolitan Police Authority, said: “We needed an independent examination over the death of Ian Tomlinson and the CPS have rightly delivered a detailed and careful investigation.”
When Ian Tomlinson‘s widow watched video footage of his last moments alive for the first time on a laptop 16 months ago, she was speechless.
But as she watched footage shot by a New York fund manager and handed to the Guardian, which was conducting its own inquiry, a different story unfolded.
Tomlinson, hands in pockets, was walking away from police. Julia Tomlinson winced as, repeatedly, she watched as an officer who was not displaying his badge number, and whose face was concealed behind a balaclava, lunged at her husband from behind and, without provocation, struck him on the leg and pushed him to the ground.
Eventually, through tears, Julia Tomlinson said she wanted justice. Yesterday, she learned there would be none.
At a meeting with the Crown Prosecution Service (CPS), she and her nine children were told of two seemingly incompatible conclusions: first, prosecutors believed there was sufficient evidence to prosecute the officer; but second, owing to both the time limit for common assault charges and medical uncertainties – crucially, the contested findings of a forensic pathologist who is now the subject of an inquiry by the General Medical Council – prosecutors did not believe there was a prospect a jury would convict the officer on any charge.
The merits of the CPS arguments put forward for not prosecuting the officer – a van driver from the Metropolitan police’s territorial support group (TSG) – had by tonight already become the subject of intense controversy. For the victims though, it was not a huge surprise.
A close-knit working-class family from the Isle of Dogs, east London, Tomlinson’s relatives long believed they would be deprived of justice by a system of police accountability they suspected was biased in favour of those who carry the batons.
The police disregard for Tomlinson was evidence on footage of the aftermath of the attack, which left him lying on the ground in front of a line of riot police shortly after 7.25pm on 1 April.
None of the officers went to the aid of the 47-year-old, who was clearly in distress. Instead, it was left to a bystander, Alan Edwards, 34, to lift him to his feet.
Edwards would later recall his conversation with Tomlinson. “I said: ‘You OK, mate?’ He said: ‘No, I live down there – that’s where I live. I can’t get there any other way. I’m trying to get home.'”
Looking disoriented, Tomlinson then stumbled 100 yards down the road before collapsing and dying.
The initial police response was to accuse protesters of wrongdoing. Within four hours, Scotland Yard had released a statement saying officers had gone to the victim’s aid and called an ambulance, and were attempting to save his life with cardiopulmonary resuscitation when they were impeded by protesters who attacked them with “a number of missiles – believed to be bottles”.
In fact, it is no longer thought Tomlinson’s treatment was impeded when two, probably plastic, bottles landed nearby. Protesters placed Tomlinson in a recovery position and called the ambulance before police arrived.
In the following days, City of London police, which was investigating the death, would receive information from witnesses that suggested Tomlinson might have been assaulted by an officer. His family were not told about this, and were advised instead that he had died after being caught up in a fracas prompted by anarchist demonstrators attacking police. Police told them witnesses had seen the newspaper seller simply “run out of batteries”.
Two days after the death, in what would become a crucial decision, the City of London coroner, Paul Matthews, requested that forensic pathologist Freddy Patel conduct a postmortem.
Patel had once been reprimanded by the General Medical Council over his conduct, and is not thought to have had a police contract at the time of the Tomlinson case. The Met had written to the Home Office four years earlier raising concerns about Patel’s work in a number of cases.
Leading forensic pathologists say privately that they were astounded to learn such a controversial postmortem would be entrusted to an expert who was no longer thought to be actively dealing with suspicious cases.
Patel has since been barred from the Home Office register of accredited forensic pathologists and from carrying out postmortems in “suspicious death” cases.
Matthews has declined to say why he chose Patel. One theory was that the coroner was recommended Patel’s services by City of London police. The force has declined to comment.
It was Patel’s findings that enabled police to assure the family, who were prevented from viewing the body for six days, that there was nothing contentious about the death.
Telling the family Tomlinson had “died of a heart attack”, police made no mention of significant injuries found on his body, including blood in his stomach, bruising, and a dog bite on his leg.
Police also briefed journalists, erroneously, that there was nothing suspicious about the death and that the victim’s family were “not surprised” he had died because of prior medical conditions.
Tomlinson’s family deny ever having said this, and for their part claimed they were “badly misled” by police. They believe they were the victims of a cover-up and that some police simply refused to countenance that an officer was involved in the incident. When a senior City of London investigator watched footage of the attack, he said Tomlinson’s assailant could be a member of the public “dressed in police uniform”.
However, it is the Independent Police Complaints Commission (IPCC), the watchdog with the job of investigating police, that may ultimately be taken to task over failings in the case.
The first, crucial days of the inquiry were left to City of London police, in whose jurisdiction the death took place.
Three days after the death, after receiving word of Patel’s postmortem, the IPCC drafted a report into the death, concluding there was “no evidence” of police involvement in the death.
Despite evidence of contact with police, the IPCC resisted calls to launch an inquiry for six days. It concluded that Tomlinson died of a heart attack after being caught up amid charging protesters.
The draft IPCC report was read over the phone to Tomlinson’s family, but was then shelved at the last minute.
The IPCC only agreed to investigate the case when the Guardian released footage of the incident and handed investigators evidence that contradicted the police version of events.
The footage instantly made headlines around the world, and would eventually transform perceptions of British policing, leading to two parliamentary inquiries into the Met’s handling of the protest and a national review of policing.
The officer caught striking Tomlinson came forward and was questioned under suspicion of manslaughter.
In August last year, the IPCC announced it had completed its inquiry and handed a file to the CPS. The family were told in a private meeting with IPCC officials that, while they were not responsible for deciding on a prosecution, investigators believed there was sufficient evidence to charge the officer with manslaughter.
When two IPCC investigators flew to New York to collect the original video footage, the investment fund manager was surprised that they arrived without basic equipment such as a tape recorder.
Despite promises of a swift decision, concern over Patel’s evidence led to months of delays.
Almost 300 complaints were lodged about police behaviour during last year’s G20 protests, arguably the most controversial large-scale policing operation in the last decade. Yet after dozens of inquiries, one trial and one of the largest inquiries in the history of the IPCC, not a single officer has yet faced serious disciplinary action. Two officers have received written warnings.
The fund manager who shot the Tomlinson footage – a man who, like Tomlinson, had no affinity with the anti-capitalist ideology of many demonstrators that day – expressed disappointment tonight. He said: “With this decision, the green light has been given. Future aggressive police behaviour towards ordinary citizens will be tolerated, overlooked, and excused.”