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Ian Tomlinson

Volume 514: debated on Monday 26 July 2010

(Urgent Question): To ask the Attorney-General if he will make a statement on the decision not to prosecute any police officer in connection with the assault and subsequent death of Ian Tomlinson?

I thank the hon. Lady for her question. I wholly understand the reaction of the public and of this House to the news that the Director of Public Prosecutions considers that he cannot bring a criminal prosecution following the Independent Police Complaints Commission’s investigation into the death of Mr Ian Tomlinson in April 2009. No one who has seen the pictures of his treatment that day could fail to be disturbed by them. The facts were rightly and thoroughly investigated by the IPCC. In recognition of the strong public interest in understanding how that decision had been reached, last Thursday the Director of Public Prosecutions, who has responsibility, independently of Government, for the decision, made a detailed and lengthy statement explaining it. The statement is available on the Crown Prosecution Service website, and I have also asked for copies of it to be placed in the Library.

Once the IPCC has concluded its report, an inquest will follow into the death of Mr Tomlinson under the direction of Her Majesty’s coroner. The Metropolitan police will also consider whether disciplinary or any other action should be brought. It has to be remembered that the detailed statement made by the DPP did not purport to set out any defence that the suspected police officer would have advanced had the case come before a criminal court; it only centred on the evidential issues faced in any prosecution.

From the outset, the CPS and the IPCC approached this case on the basis that there may be evidence to justify a charge for manslaughter. Expert evidence was obtained with a view to establishing the cause of death. After the original pathologist, who was appointed by Her Majesty’s coroner, provided a second statement about his findings, the factual basis on which the other experts had given their opinions about the cause of death was seriously undermined. The CPS concluded that there was no realistic prospect of conviction for manslaughter.

It is not appropriate practice in possible homicide cases to bring a charge for a lesser offence such as common assault while there remains a prospect of a prosecution for manslaughter. But once it was clear that a charge for manslaughter was not going to be possible, the CPS turned to consider whether proceedings could be brought for assault occasioning actual bodily harm. In law, a charge of assault occasioning actual bodily harm can be brought in respect of quite minor injuries. However, to bring a measure of consistency to charging decisions in assault cases the CPS applies charging standards. In the case of the G20 demonstration, for example, after a police officer struck a woman twice with his baton causing a similar level of injury, the CPS brought a prosecution for common assault applying exactly the same guidance. That officer was of course recently acquitted by the courts.

I understand the dismay of the House at the outcome of this case, which is that a prosecution will not be brought for any offence. That outcome was reached after an independent investigation of the facts by the IPCC and independent and thorough consideration by a senior and experienced Crown Prosecution Service prosecutor, with the added benefit of advice from independent leading counsel under the oversight and with the approval of the Director of Public Prosecutions. I have seen nothing to make me doubt the seriousness and propriety of the decision-making process in this case.

Does the right hon. and learned Gentleman believe that if a member of the public had launched an unprovoked attack on a police officer that was immediately followed by the officer’s death, and if that incident was on film, a pathologist of highly dubious professionalism would have been appointed to investigate and that that pathologist would have been allowed to throw away samples that could have proved the link between the assault and the death? Does he also agree that it would be highly unlikely, even if one were to leave aside the evidence in connection to the manslaughter, that there would be no action on the assault?

We have all seen the film. The man was clearly assaulted. We have also, have we not, read Nat Cary’s evidence in which he says that there is an area of bruising consistent with being hit with a baton? As Nat Cary says, if that is not ABH, what is? How can the CPS have taken 15 months to come to no conclusion? It is not going to take any action. I suggest that that would not have happened if the tables had been turned and this shows that there is no equality before the law. If the right hon. and learned Gentleman agrees, what is he going to do about it?

I should say at the outset that I think that the first part of the hon. Lady’s question is based on a slightly false premise. The appointment of a pathologist is a matter for the coroner, not for the CPS. The first pathologist appointed in this case was appointed by the coroner—he has the power to do that. The hon. Lady will be aware from what was said by the DPP and from what I said a moment ago that much flows from that appointment. It is clear that a report was produced that provided an indication to lead to further reports that looked as though it might lead to showing a causal connection between the assault and the death but that subsequently a further factual statement from the pathologist first appointed by the coroner entirely undermined the basis on which any further expert view could be taken of the case by other pathologists. That is at the root of the problem.

As for the hon. Lady’s suggestion that in some way this case would have been treated differently had it involved the death of a police officer, I have no reason to think that that is the case. It is right to say that when the matter was first drawn to the attention of Her Majesty’s coroner, it might not have been apparent at that stage—because the video evidence had not become available—that this was not a sudden death on the fringe of the G20 demonstration rather than something that was intimately linked to it, as became clear when the video evidence became available.

I should like to thank the Attorney-General for the elaboration that he has given. It seems to me that the decision not to prosecute appears to rest on the divergence of medical opinion between the three pathologists who have conducted post-mortems, creating evidential problems for the DPP when considering the likelihood of proving a causal link between the push and the blow that, as we have all seen, were struck at Mr Tomlinson and his subsequent death. However, is it not the case that the decision of medical authorities to charge Dr Patel, the first pathologist, with 26 counts of misconduct is materially important?

The public will find it difficult to understand how the opinion of a doctor facing 26 charges of misconduct before the General Medical Council can in effect muddy the evidential waters in this very serious case to such an extent that a prosecution cannot proceed in a case where the public interest is not served, as I think the right hon. and learned Gentleman would probably agree, by such a decision.

Prosecuting authorities, of course, are rightly independent, but what powers of supervision does the Attorney-General have over their decisions? In view of the GMC’s charges against Dr Patel, has the Attorney-General asked the DPP to review his decision about whether to bring charges, given that the other two pathologists—Dr Cary and Dr Shorrock—agree that Mr Tomlinson’s death was a result of internal bleeding from blunt force trauma to the abdomen? If not, will he now do so?

I am sure that the Attorney-General agrees—and would say again—how important it is that justice is seen to be done, freely and fairly, with all being equal before the law. The unfortunate circumstances of this case do not appear to show that at present.

As for the hon. Lady’s last comment, I entirely endorse what she says. On her earlier comments, I am not in a position to make a judgment on the misconduct allegations that may pertain to the pathologist, Dr Patel, which I understand arise out of other matters. Neither am I in a position to comment on questions of expertise. As I tried to make clear a moment ago, this is about an issue of fact. Dr Patel carried out the first post-mortem examination, which included certain conclusions about blood in the abdominal cavity. Subsequently, he factually retracted those statements, or altered them markedly, putting a completely different complexion on what conclusions could be drawn from the evidence and whether, in particular, any connection could be made between the blow that one can see being struck on the video, the fall that followed and the actual cause of death. I understand that that lies at the root of the Crown Prosecution Service’s difficulties in this case.

The hon. Lady also asked about my powers of supervision and superintendence. I have those—they are my ability to ask questions. As she might appreciate, I have certainly had an opportunity to do that, but this is not my decision and I have not been in a position to review the evidence. As I said earlier, I have no reason to think, from anything I have heard, that this matter was not most conscientiously and fully inquired into with a clear desire to see justice being done. The decision is potentially open to being reviewed by means of judicial review—that could happen if someone wished it to take place—but I want to make it clear that on the basis of what I have been told and what I have discussed, but not on a review of the evidence, it seems to me that the CPS has acted with complete propriety in this matter and in trying to take it forward.

Does my right hon. and learned Friend accept that the CPS might have acted with complete propriety but that its actions have nothing to do with the delivery of justice in this case? Does he understand that to allow the findings of a pathologist who has previously found a victim of the Camden ripper in 2002 to have died of natural causes resulting from heart disease to trump the considered verdicts of two other pathologists is far from satisfactory? Is he more understanding than I am of the fact that the Director of Public Prosecutions can take the view that the findings amount to an irreconcilable disagreement between experts rather than between two experts and one incompetent who ought to be disregarded?

I fully understand my hon. Friend’s concerns, but at the risk of repeating myself, I must restate the key point. This is not just a disagreement between experts: it is about a key matter of fact that had to be established at the outset, which has been left completely unclear. On the basis of the facts as now stated, it does not lend support to there being a causal connection between the blow and the death. That might be a profoundly unsatisfactory state of affairs, but I simply say that the CPS has to go with the material that is available to it, and it cannot manufacture it or wish that something different had happened from what actually happened. From that point of view and bearing in mind my responsibility in this matter, in seeking to answer the House’s questions properly, I repeat that the CPS seems, from what I have been told, to have acted with complete propriety in investigating this matter.

The Attorney-General might recall that at the instigation of the hon. Member for Carshalton and Wallington (Tom Brake) the Select Committee on Home Affairs held an inquiry into the G20 riots and made passing comment on the case of Ian Tomlinson. Two recommendations were put forward, one of which concerned the use of untrained officers. The other involved the Committee’s concern about the prospect that communication between the police and the public at that time, and the tactics that were used, might undermine public confidence and trust in the police. Have those two recommendations been addressed? If not, will the Attorney-General write to me and let me know what progress has been made?

I think the right hon. Gentleman will understand that those questions fall slightly outside the remit of my area of responsibility. My right hon. Friend the Home Secretary is sitting on my left, however, and I am sure that is a reflection of the seriousness with which she takes the entirety of the matters that the right hon. Gentleman has just expounded. I hope very much, therefore, that my right hon. Friend will be in a position to answer the question that he raised.

It is important not to prejudice any further action, but does the Attorney-General agree that to avoid the impression of a cover-up it is also important that the CPS considers all the evidence that will be presented at the inquest and whether it warrants taking action against the officer then?

The hon. Gentleman makes a perfectly good point. As I indicated, the matter is not at an end. There will be an inquest and there is the IPCC report to the Home Secretary. If it were, indeed, the case that further evidence emerged, I have not the slightest doubt that the CPS would wish to consider it.

The issues causing my constituents concern are, first, the seeming failure of the Metropolitan police ever to learn from their past mistakes and, secondly, that the CPS seems to have endowed the medical evidence with undue weight and ignored the other manifest evidence that was in the public domain. If there is to be an inquest, will the family of Mr Tomlinson be afforded any kind of financial support by the Government, given the swingeing cuts that have been introduced to the legal financial service?

On that latter and final point, I have to tell the hon. Lady that it is a matter for my right hon. and learned Friend the Secretary of State for Justice. As she is aware, provision is available to help families in certain inquests and that matter would have to be considered. It would also have to be considered by the Legal Services Commission to which application would be made.

May I return to this point: I do not think it is a question of the application of undue weight on anything? The responsibility of the CPS is to apply the code and test of Crown prosecutors as to whether there is a basis on which a prosecution can be brought. In a case of prosecution for manslaughter, that is not possible for the reasons I have already given the House and the hon. Lady. In a case of assault occasioning actual bodily harm, if the CPS were to depart from its own standards and guidelines, which have, I think, been in existence for some 15 years—I seem to recollect they were introduced following some criticisms that there were excessive variations in when assault occasioning actual bodily harm was charged or not—that decision could be open to criticism and challenge.

Is it not time that coroners were issued with new guidance that they should not appoint pathologists when there is a direct and/or present relationship with the police force they are investigating?

My hon. Friend raises an interesting question. Normally, as I understand it, that is a matter for the discretion of the coroner. It may be that one of the matters arising from this case that needs to be considered is how pathologists are appointed by coroners in all cases.

Does the Attorney-General agree that a key element in upholding the rule of law is people’s confidence in the rule of law? Does he also agree that a number of issues associated with this case have tended to undermine that confidence both for the tragic Tomlinson family and for the community as a whole? The question of the pathologist’s competence has been touched on, but there is also the chequered history of the policeman involved—at one point, he was actually discharged from the Metropolitan Police Service. There is also the question of the length of time it took the CPS to finish the inquiry, which has meant that no prosecution of any kind may be brought. Does the right hon. and learned Gentleman agree that all of us in the House who are committed to upholding the rule of law have reason to be concerned about what has happened in this case?

I certainly endorse the hon. Lady’s final comment. Yes, and I hope I made it clear that there is something profoundly unsatisfactory about a conflict of evidence arising on facts and matters of this kind. Some matters the hon. Lady raises are not within my province, but there may well be some lessons to be learned, and as I indicated previously, this matter is at least not yet completely at an end. That having been said, prosecutors have to see that the law is observed, but they have to act within the law and on the evidence. They are constrained by that; indeed, that is one of their responsibilities and duties. The fact that the evidence ends up unsatisfactory and that the matter cannot therefore be taken any further does not mean that they have not done their job properly.

Does the Attorney-General accept that, whatever may be the normal practice, there was nothing to prevent the CPS from bringing a simple assault charge while other matters continued to be investigated? Does he also recognise that the urgency of creating a system of genuinely independent medical examiners, as recommended after the Shipman case and by the Justice Committee, is confirmed by aspects of this case?

The right hon. Gentleman raises the question of whether an assault charge could have been brought while the investigation continued. I say simply that it could have been. The difficulty that might have arisen is that if that assault charge had been taken to conclusion through the courts during the period of the investigation and subsequently the material on which a manslaughter charge could have been based became apparent, it might then have been impossible to proceed with the manslaughter charge. I do not think that that matter can simply be overlooked.

I did not fully respond to the point put by the hon. Member for Hackney North and Stoke Newington (Ms Abbott) about the timing. I simply say this: there was an IPCC inquiry first of all, which took some months. By the time the Crown Prosecution Service got the material in this case, time had already gone on a fair bit. In those circumstances, I do not take the view from what I have seen that the CPS was in any way dilatory in trying to bring this matter to a conclusion.

Does the Attorney-General understand that a lot of people view his remarks today and his response to my hon. Friend the Member for Islington South and Finsbury (Emily Thornberry) with utter consternation? As my hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott) pointed out, this is a question of justice and of seeing justice to be done. If we are to have any confidence in the judicial system and in the ability of the Government or the CPS to mount a prosecution, something must happen in this case where a wholly innocent man was killed in broad daylight on the streets of London and no action appears to be imminent on this matter.

As I said, anyone who saw the video of what happened must be seized with very serious concern about the matter. That is a view that I entirely endorse. Therefore, for the same reason, I am extremely unhappy, as I am sure everyone in the House is, that we should be in the position that we are in today with such a complete lack of clarity in the matter. There may well be lessons to be learned overall, but I came to the House to answer for the CPS, which had to take the material available to it and act on it. As I said before, I do not believe there is anything in what I have seen of how the CPS has conducted itself in this matter to make me think that it was not seeking throughout to try to ensure that justice was done in this case. I hope that the hon. Gentleman will be able to accept that.

Does the Minister agree that the liberty of every citizen in this country relies on the separation of powers, that members of the public should not be tried by television and the media and that the CPS has looked at this properly and reached a proper decision?

My hon. Friend does make an important point—in this country, we have the presumption of innocence and it is also right that we only prosecute where the code test is passed and there is a credible basis on which a prosecution can be brought. Those are onerous burdens for the CPS, which it has to discharge impartially, free of political control and fearlessly. I have not the slightest doubt that in this matter that is what it has sought to do. The fact that the outcome is unsatisfactory—from the House’s viewpoint and that of many, particularly, I might add, the family of the deceased, for whom everyone in the House must have the greatest sympathy—does not, in fact, undermine the validity of what the CPS was trying to do.

Does the right hon. and learned Gentleman accept that, on the CPS’s lack of proceeding against the officer, one aspect that causes concern is his alleged chequered history? According to press reports, he left the Met under a cloud, was re-employed as a clerk, successfully applied to Surrey constabulary for a position and then transferred back to the Met. Can the right hon. and learned Gentleman advise us, to his knowledge, whether that aspect of Metropolitan Police Authority recruitment policy is being examined as part of the process in respect of the prosecution, and whether, if there is a lesson for the Home Office on inter-constabulary transfers, that matter will be brought to the attention of the House?

The Home Secretary is sitting on my left, and she has had the opportunity of hearing the hon. Gentleman. As he will appreciate, the points that he makes are again outside the remit of myself as a Law Officer and, indeed, of the Crown Prosecution Service, but I fully accept that they are perfectly pertinent.

Would my right hon. and learned Friend be able to assist in this way: cases involving causation are always difficult, but did the Crown Prosecution Service consider two other charges available to it, neither of which would have been time-barred, namely affray and misfeasance in public office?

So far as affray is concerned, I am not aware of whether it was considered, and it does not immediately spring to mind as appropriately reflecting what happened in the case. So far as misconduct in public office is concerned, the matter can be looked at, but the test for misconduct in public office is quite clear: it should not be used as a substitute to get around a substantive offence being brought. For those reasons, the CPS took the view that misconduct in public office was not an appropriate charge to bring, and in that it is certainly backed by all precedent.

Is it true that the coroner, Professor Paul Matthews, refused to allow two IPCC investigators to attend the first post-mortem and failed to advise Mr Tomlinson’s family about their rights in relation to the second post-mortem? If so, how can any of us have any confidence in his ability to conduct an inquest that will have such a crucial bearing on any future decision by the CPS?

As to the latter point about the family, I am not in a position to comment. As to the first, on whether the coroner insisted that a post- mortem go ahead with Dr Patel only, I think that I am in a position to confirm that that is what he did.