An official decision to bring no charges against the policeman who struck Ian Tomlinson minutes before he died at the G20 protests came under intense scrutiny last night as it emerged that the Independent Police Complaints Commission had backed a prosecution for manslaughter.
Keir Starmer, the director of public prosecutions, acknowledged there was evidence that the officer, named as PC Simon Harwood, assaulted Tomlinson, 47, minutes before he died. But he said there was no realistic prospect of conviction because of “sharp disagreements” between pathologists.
The decision was met with fury by Tomlinson’s family, who accused the authorities of a 16-month cover-up over the death of the seller on 1 April last year, when he was seen on video being struck by an officer and then shoved to the ground, despite behaving peacefully.
The Crown Prosecution Service’s view clashes with that of an investigation by the Independent Police Complaints Commission. The Guardian has learned the IPCC concluded there was sufficient evidence to charge the officer with manslaughter, and told Tomlinson’s family so.
The first postmortem by Dr Freddy Patel endorsed the police’s version of events, ruling that he died from a heart attack.
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.”
The CPS said Patel’s findings would provide a jury with enough reasonable doubt that the officer’s strike contributed to the death, and as a result they would acquit. By coincidence Patel yesterday faced a disciplinary hearing at the General Medical Council for allegedly conducting four other autopsies incompetently. He could be struck off and the Home Office has suspended him from its approved list.
Starmer said the CPS could not bring a charge of common assault because it failed to do so within a legal time limit .
Tomlinson’s family accused the authorities of a “big cover-up” and there were heated exchanges as they met with prosecutors after being told the news.
Tomlinson’s stepson Paul King said: “It’s outrageous. We feel like it was not a full investigation from the beginning. It’s a big cover-up.
“He has just admitted on TV that a copper assaulted our dad. But he hasn’t done anything. He’s the man in charge … why hasn’t he charged him.?
The Tomlinsons’ solicitor, Jules Carey, said the decision was disgraceful and said an inquiry must examine if it was due to a “lack of will or incompetence”.
The solicitor said Cary’s view that the CPS made factual errors would be examined to see if it could form part of a legal challenge: “The family were surprised about how the extent of the injuries were minimised by the CPS.”
The family’s expectation that the officer would be charged was built on the video evidence and because of what the IPCC told them about its investigation.
The IPCC concluded its investigation into the death and handed its file to the CPS in August 2009. Shortly after, senior investigators held a meeting with the family to discuss their findings. While they made clear the CPS was responsible for charging decisions, IPCC officials told the family they believed there was sufficient evidence to charge the officer with manslaughter.
Last night the IPCC said: “The officer was interviewed for the offence of manslaughter under caution.” An inquest will now be held into the death, where the family will hope a jury hear the case. The officer remains suspended and is expected to face a disciplinary hearing.
Deborah Coles of the Inquest charity said: “The eyes of the world will be looking on with incredulity as yet again a police officer is not facing any criminal charges after what is one of the most clear-cut and graphic examples of police violence that has led to death. This decision is a shameful indictment of the way police criminality is investigated.”
The CPS lawyer who made the decision was the same one who decided no officer should face charges for the shooting dead of Jean Charles de Menezes by police who mistook him for a terrorist. That shooting happened five years ago yesterday.
The Met commissioner, Sir Paul Stephenson, said he regretted Tomlinson’s death and offered his sympathy to his family. He said he was concerned by the video footage but that it was not appropriate for him to comment on the outcome of the IPCC inquiry or the CPS decision.
There is a climate of impunity among Britain’s police services that is fostered by the reluctance of the CPS to bring prosecutions
Ian Tomlinson lived a life below the horizon, but he died a very public death. For his family, it is a private and enduring tragedy, the events leading to it incidentally captured on mobile phones and the City of London’s CCTV. But, pieced together by the Guardian, the truly shocking sequence of events that culminated in an innocent man dying in the street became a national outrage. And this time, no one could hint at provocation, or spin out disinformation about running away or jumping barriers. Yet, five years to the day after the police shot Jean Charles de Menezes, the director of public prosecutions, Keir Starmer, announced that there was not enough evidence to prosecute a police officer seen on the world’s TV screens hitting and pushing Mr Tomlinson. So now there are two scandals: first the globally transmitted evidence of a man dying after being hit and violently pushed by a police officer; now the decision not to press charges.
The DPP was not dealt an easy hand. If we all witnessed some of the last minutes before Mr Tomlinson died, only a handful know quite what happened immediately afterwards. This is the so-called “golden hour”, the critical beginnings of a possible criminal investigation. Such an investigation into the actions of a member of the public would have been conducted with scrupulous attention to detail. Yesterday, however, it became apparent that the investigation had been critically undermined by a botched postmortem that was conducted in the absence of any representative of the family by a pathologist, Dr Freddy Patel, who is now under investigation by the General Medical Council – for matters unrelated to this case – and barred from such work for the duration. Two subsequent postmortems on Mr Tomlinson found the cause of death not to be a heart attack (as Dr Patel proposed) but abdominal bleeding, possibly triggered by a heavy fall – but for certainty the pathologists needed better records than those kept by Dr Patel.
It is clear from the report of the Crown Prosecution Service that efforts were made to reconcile the findings of the postmortems. Its inability to do so, however, is not some catastrophic misfortune. It is a symptom of an institutional failure. The problem is this: there is a climate of impunity among Britain’s police services that is fostered by the reluctance of the CPS to bring prosecutions. It was clear in the events surrounding the death of the teacher and activist Blair Peach more than 30 years ago; it was clear in the events surrounding the shooting of Jean Charles de Menezes in 2005 for which no one has been prosecuted; and it is as clear now in the response to Ian Tomlinson’s death. Things may have improved since the Cass report into the death of Blair Peach, finally published earlier this year, which found members of the Metropolitan police (none of whom was ever charged or even disciplined) telling “easily recognisable lies”. How, after all, could police officer A deny that he had hit Mr Tomlinson when the world had seen him doing just that. Yet the sense of impunity is unchanged. This was never acceptable. Now it is unsustainable.
The facts of the attack on Ian Tomlinson, which the CPS accepts might have constituted at least common assault and could amount to manslaughter, should have been considered in court, where the pathologists could be cross-examined, their evidence weighed by a jury. It was the DPP’s job to make sure it happened, to end the long and dishonourable tradition of not prosecuting the police. But it is not only his office that could bring about change. The Independent Police Complaints Commission is the guardian of public confidence. It must explain why it delayed for a whole week before launching its inquiry. There is much more good policing than bad. No one is always right. But to have the remnants of an authoritarian state reverting unchecked, however infrequently, to the use of disproportionate force is unacceptable.