Wednesday, 25 May 2011

A Glimmer for the Family of Ian Tomlinson

The death of Ian Tomlinson during the G20 protest in April 2009 may well go down as an incident which changed the instincts of many in Britain towards the police and how they go about their job of upholding law and order. It may appear a cold, withdrawn observation to make, and will be of no consolation to any of his loved ones, but when something as tragic and horrific as his death occurs, one can only hope that something representing an improvement on the status quo comes out of it. The decision to charge PC Simon Harwood with manslaughter over the affair suggests that this may just happen, regardless of the outcome.

Whether Mr Harwood is guilty of manslaughter or not is for he, his solicitor and in all likelihood a jury to decide. What we know is that Tomlinson, having finished his working day selling newspapers, attempted to make his way through the demonstrating crowd towards a homeless hostel on the evening of 1st April 2009. He was not a demonstrator, and posed no apparent danger to either those involved in the G20 protest or the police. However, he was followed by members of the Met's Territorial Support Group and one of them (believed to be Harwood) swung back, baseball-style, struck him with a baton and then shoved him to the floor. Tomlinson attempted to walk away but collapsed almost immediately. and was dead within minutes.

This would appear to be a fairly simple case to investigate, especially when recorded footage of this incident was leaked and shown on television. Establish the exact cause of death and, if necessary, identify the officer responsible. Then make a rational decision whether sufficient evidence exists to pursue a charge of either murder of manslaughter. Sounds straightforward, doesn't it? Enter Dr 'Freddy' Patel, an accredited forensic pathologist who on the surface was a sensible choice to establish the cause of death. However, scratching beneath the surface begs the question as to why he was selected for the task, given that the Met had themselves written to the Home Office in 2005 to complain of glaring errors in some of Mr Patel's work.

The most notable of these came in 2002. Patel had concluded that Sally White, who had been found dead in the flat of Anthony Hardy, had passed away as a result of a heart attack. This was despite the bloodying of her scalp and the presence of a bite mark on her thigh, but the 'natural causes' verdict was sufficient for the criminal investigation against Hardy to be closed. Hardy later confessed to killing Miss White prior to being convicted of the murders of Liz Valad and Brigitte McLennan in November 2003. The head and hands of both victims were never recovered and the remains of their bodies had been dumped in black bags. It is highly likely that but for Patel's mistaken conclusion the previous year, Valad and McLennan would still be alive. Patel also found in the first instance that Ian Tomlinson had died of coronary artery disease, or in layman's terms, a heart attack.

Amid protests from members of Mr Tomlinson's family, a total of three further post-mortems were carried out during April 2009. Dr Nathaniel Carey immediately refuted Patel's findings, concluding that Mr Tomlinson had died from internal bleeding as a result of blunt force trauma, with cirrhosis of the liver as a secondary cause. Dr Kenneth Shorrock and Dr Ben Swift, carrying out two separate post-mortems, took the side of Dr Carey in his view that the cause of death had been internal bleeding and not a heart attack.

However, the post-mortem of Dr Patel represented a strong piece of evidence that would damage the credibility of any attempt to pursue a prosecution for either murder or manslaughter. As a result of this, the case was closed by this time last year, and it appeared that those close to Ian Tomlinson would never see a resolution to the events surrounding his death. It was a also a deeply unsatisfactory ending for all those, myself included, who felt that the police had been allowed to behave as an army of the state, a law unto themselves, without fear of being held to account.

It turned out that Dr Patel's negliegence in the Sally White case was not an isolated instance. In July 2010, he found himself before a GMC hearing in which 26 charges were levelled at his work spanning four criminal cases. The recurring theme was of failing to notice obvious signs that indicated death by less than natural causes, the sort that most of us would have spotted had we been presented with the corpse of Sally White. The GMC, an organisation which has been perceived as lenient and protective towards its own in the past, found Patel guilty on sufficient counts to suspend him for three months for 'deficient professional performance.'

Earlier this year, Patel faced a 'fitness to practice' hearing over the Sally White post-mortem. The chairwoman of that hearing, Vickie Isaac, delivered this damning critique of his work:-

“The panel determined that it was clear from your first report that you had not adequately considered other possible modes of death, including asphyxia. Your conclusions were made without any adequate consideration of other possible modes of death, including asphyxia, and that this was irresponsible, not of the standard expected of a competent forensic pathologist when undertaking and reporting on special or forensic post mortem examination and liable to bring the medical profession into disrepute.”

Then at the start of this month, an inquest jury concluded that the (unnamed) officer in question had acted "illegally, recklessly and dangerously". They also stated, with some finality, that Mr Tomlinson's death was unlawful, and had been as a result of internal bleeding and not a heart attack. The GMC are now looking into the possibility of investigating Dr Patel and his fitness to practice again, and Director of Public Prosecutions Keir Starmer was faced with a difficult decision of his own. Given that the original post-mortem remains a massive weapon for any well thought out defence, was it right to charge PC Harwood with manslaughter and make him face trial?

That he has done so appears to have the support of a large section of the population myself included. Assuming that PC Harwood pleads not guilty and does not accept a lesser charge such as ABH, only a jury can decide whether he killed Ian Tomlinson, albeit unintentionally. The surprising element in this story is how many people were horrified by the original decision not to prosecute, and were therefore in total agreement with Mr Starmer's judgement that the original decision should be reversed. It would appear that there has also been a shift in general attitudes towards the role of the police in our society, and that is just as welcome, possibly more so.

Throughout the 1990s and into the early 2000s, the notion of civil liberties was seen by the 'silent majority' in Britain as the terrain of 'namby pamby lefites' and academics who were out of touch with the 'real world'. This single view completely dominated our political discourse and brought with it some dire consequences. Tuning into what he saw as the public mood and applying the law of 51 per cent, Tony Blair and his government passed a mountain of draconian legislation that slowly chipped away at some of the freedoms and principles established by the Magna Carta over 700 years earlier. These included the automatic right to a jury trial, the presumption of innocence and the principle of no detention without charge.

All were lightly regarded by a man looking to win over readers of the gutter press, and who sincerely believed that history began in 1997. Anyone objecting was presumed to be "soft on crime and soft on the causes of crime" and as a result, what the police wanted was what the police got. Control orders, a raft of 'anti-terror' legislation, additional CCTV and surveillance, new laws on 'hate crimes', ASBOs - I could go on. They were spoiled, and as an institution began to run riot like a spoiled child as a result.

The execution of Jean Charles De Menezes at Stockwell Tube Station in July 2005 appeared to change some minds, but then sections of the mainstream media diluted any legitimate sense of angst by reporting that the Brazilian had overstayed his visa. This of course was a tacit invitation for some readers to conclude that he was partially to blame for his own death. Eventually, no criminal procedings were brought against any Met officer with regard to the shooting. It appears to have taken the death of a man born and raised here to awaken the general population to the concept that those responsible for upholding the law are not themselves above it, and that just like any other member of the public, they must answer and be accountable for their actions where necessary.

Over the last three decades, something has gone horribly wrong in the relationship between the police and the rest of us, with successive governments exacerbating the problem by competing in an arms race over who can be more 'tough on crime'. The Peelian principle that 'the police are the public are the public are the police' appeared to be forgotten altogether at some point in recent history. People who call themselves Libertarians but idolise Margaret Thatcher all the same have either a poor grasp of history or a very selective case of amnesia, for her use of the police as a private army during the miners' strike marked a very clear shift in how law enforcement related to those it was supposed to protect.

Whether you agree with the cause of the miners or not is irrelevant. The critical point is - any attempt or even pretence to cling to the Peelian notion that the police are a uniformed extension of you and I died the day that the Iron Lady sent armed police into a wave of protesting (and in some cases violent) strikers with the clear intention of smiting them, and putting them in their place. If one sees the record of the police in demonstrations and protests from that day on, they invariably reach the same conclusion, namely that the police serve the state, and care not a jot for the freedoms that they were once supposed to uphold.

Routine police brutality at the G8 and G20 protests against demonstrators, 'kettling' and penning them in like animals - again it does not matter one iota whether you or I agree with the point being made by the demonstrators. From watching footage of all of these protests on television and YouTube, it has become clear that the 'right' of the police to exert the will of the state has been judged to outweigh that of people wishing to make an expression of social or political conscience. People claiming that the police had been 'too soft' on the students and anti-cuts protestors in the last six months or so should watch some of the more graphic scenes at G8 or G20 and witness the alternative with their own eyes.

I saw the 'too soft' criticism as a positive sign that some sort of lesson had been learned from the death of Ian Tomlinson. In theory, it should never take something of this nature to prompt awkward questions to be asked of those in authority. However, history tends to point towards the reality that, sad as it may be, this is indeed the only type of incident that brings about positive change. I found PC Harwood's evidence to the inquest last month remarkably revealing. Here's a quote from it:-

"He (Tomlinson) just looked as if he was going to stay where he was, whatever happened, and was almost inviting physical confrontation in terms of being moved on."

Now having watched the footage, Tomlinson appears more than anything to be somewhat lost and perplexed as to how he can negotiate his way through the crowd in front of him. Harwood himself seemed to contradict the statement above when he accepted that Tomlinson had not posed a threat to anyone. From a distance, the highlighted quote read as the words of an officer who certainly expected and was geared up for physical confrontation on the day, and whose mindset towards the job in hand may have reflected this.

It should be said that only a cross-examination of PC Harwood in the witness box will establish if this is the reality or not. It may also be the case that if Dr Patel is allowed to continue as a pathologist, the conflicting medical evidence will make a 'not guilty' verdict highly likely. However, what is absolutely clear and beyond doubt that there is a very serious case to answer and that Harwood should face trial. The law belongs not to the police or the judiciary, but to all of us, and this means that those charged with upholding the law should be no more exempt from it than you or I. If this case has helped to swing the balance back in that direction, albeit slightly, then at last some good has come from the tragic and avoidable death of Ian Tomlinson.

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