Tomlinson unlawfully killed

The BBC are reporting that Ian Tomlinson was unlawfully killed when a police officer hit the newspaper seller with a baton and pushed him to the ground.

Should the officer now face charges?

There are a few potential charges:
  1. Common assault;
  2. Assault occasioning actual bodily harm (ABH);
  3. Assault occasioning grievous bodily harm, s.20 (GBH)
  4. Assault occasioning grievous bodily harm, s. 18 (GBH)
  5. Manslaughter.


All forms of assault are basically the same; all require an assault (usually by way of battery).  The difference between the offences is the level of injury caused to the victim.  So, common assault there will be little or no injury.  The injury needed to get home on an ABH is defined as being "more than merely trifling" and GBH is commonly accepted to involve the breaking or both layers of the skin, although you'd probably find yourself facing a GBH charge if you smashed somebodies skull in without killing them

The difference between the two types of GBH is that s.18 requires an intention to cause the injury, while s. 20 can be committed where the injury was caused recklessly.  This is an important distinction as it goes to whether the defendant set out to really badly hurt somebody and is reflected in the sentences available with s.18 carrying life imprisonment while s.20 carries a maximum of 5-years.

I doubt the CPS would ever be able to prove the men rea for s.18 GBH, which is that the defendant intended to cause the injury, so we are left with possible charges of s. 20 GBH, ABH, common assault or unlawful and dangerous act manslaughter.

It is difficult to say whether the prosecution could have charged with an assult requiring injury without knowing what injuries were caused.  However, the officer could have been charged with common assault except that the Director of Public Prosecutions took so long to make a decision that the statutory time limit for bringing that charge expired (common assault can only be tried in the magistrates' court and thus must be charged within six-months of the commission of the offence; whereas the others can be tried in the Crown Court so no time limit applies).

Now, unlawful and dangerous act manslaughter requires that somebody has died as a result of the defendant's actions and that those actions were both unlawful and dangerous.  This used to be a charge used when a dangerous driver killed somebody but as the manslaughter bit sounds quite bad juries had a habit of not convicting so the Government of the day introduced the charge of causing death by dangerous driving.  Now, I will say that apart from one appeal case (that is now reported in Archbold) I have never had any contact with this type of manslaughter as it's quite an unusual thing to charge somebody with.

Could the PC be guilty of unlawful and dangerous act manslaughter?  Well, in Andrews v DPP [1937] AC 576, Lord Atkin said that the act must be more than merely negligent, he gave the example of a speeding driver and said that driving is legal.  Driving becomes illegal if you exceed the speed limit.  The law must distinguish between "an unlawful act and doing a lawful act with a degree of carelessness which the legislature makes criminal".  So, we ask the question was the PC's action more than careless and positively unlawful?  In light of the jury's finding it seems the answer must be "yes".  You could mount a defence on the basis that as a police officer who believed himself to be in danger he genuinely thought his actions were lawful, but more on that later.

So, we ask the question was the act dangerous?  This is a question for you to answer, because in the case of Church [1966] 1 QB 59, Edmund-Davies, LJ said that  dangerous meant that the unlawful act "must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm".  It is worth noting that it is irrelevant whether the defendant realised that his actions would cause harm, in DPP v Newbury [1977] AC 500, Lord Salmon said, "... it is unnecessary to prove that the accused knew that the act was unlawful or dangerous".  That was also the view of Lord Lane, CJ in the case of Ball [1989 Crim LR 730.  This is what you could call an objective test - I think in tortuous law they refer to this sort of thing as the Man on the Clapham Omnibus test, which is where you ask yourself what an average chap who travels on public transport might make of a given situation.  It also eliminates the possibility of a legal defence being put forward on the basis that the officer believed his actions to be lawful; although, it does not prevent a legal defence on the basis that the officer's actions actually were lawful.

In the case of Mitchell [1983] QB 741 the defendant hit A who fell onto an elderly lady breaking her leg.  The Court of Appeal held that the defendant's actions were indeed both unlawful and dangerous.  Is hitting somebody with a baton unlawful?  In the normal course of events it is and the jury clearly believed that the officer's actions were unlawful.  Is hitting somebody with a baton  such as all sober and reasonable people would inevitably recognise... the risk of some harm resulting therefrom?  Again I think the answer is yes.  In light of the jury's verdict could the PC be charged with manslaughter?  Yes.

Before deciding whether to charge, the CPS must apply the Code for Crown Prosecutors  In the PIS stage the decision maker must decide whether bringing charges is in the public interest or whether the public are better served by turning a blind eye - the recent guidance by the DPP that people taking loved ones abroad for euthanasia will rarely be prosecuted is an example where the authorities have indicated they might ignore a crime.

I personally doubt that the PC will be the subject of a manslaughter trial and am inclined to the view that to so charge him would not be in the public interest as I have my doubts whether he would be convicted.

If there is evidence for an assault charge that may well be forthcoming, but I think the most likely outcome is that the matter will be left alone.

Comments

  1. It seems to me (random, hopefully reasonable member of the public) that the problem here is the time limit on common assault charges.

    The idea of the police officer not being charged for striking a member of the public without cause is repugnant, but a charge of manslaughter seems excessive.

    It doesn't seem like reasonable justice for the options to be limited to manslaughter or nothing unless evidence for ABH or GBH arises.

    So I can stop guessing, do you know why this restriction is in place?

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  2. While it was a long time ago that I studied the relevant law I though R v Williams (1996) 2 Cr.A.pp.R72 would be more appropriate; i.e. one punch that lead to an unforeseen set of events ending to death. Although this is an old case I believe that it is still good law and fits this case almost exactly.
    I though that the original decision not to prosecute was more a result of the pathologists report than the push and baton strike, which was admitted to be enough to support a charge. As the original pathologist has been somewhat discredited I would assume that any decision to press charges would be based on the evidence of the other numerous (up to six?) pathologists who have examined the evidence.
    As to the public interest test, considering the police account of events has been consistently disproved and discredited, I would have thought it very much in the public interest for there to be a trial.
    I cannot in all honesty claim any knowledge of how likely a conviction would be, but as it appears that all the aspects of a manslaughter charge are made out, there is the much watched video, and the account of PC Harwood has already been disbelieved by a jury (although looking at a different matter) I would rate it as pretty high (in my own inexpert opinion).


    Joseph K.

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  3. There really should not be a problem with charging ABH or GBH under sect 20. Regardless of the precise injuries, death in itself would surely meet the criteria for ABH or GBH - there's no need to get tangled up in the medical niceties.

    Of course, it would look very odd indeed to make such a prosecution rather than one for manslaughter, and it would only exacerbate concerns about the police being above the law. Seems to me that a charge of manslaughter would be appropriate, possibly with ABH/GBH on the sheet as well (can they still do that?).

    Can't see that there is a sensible way out of this *other* than a manslaughter prosecution.

    A coroner's jury finding of unlawful killing is surely sufficient to show a reasonable prospect of conviction, and I can see no reason this would not be in the public interest. The usual 'reasonable force' defences will be available and I guess that it what it would hinge on - well, that and all the causation stuff, which will doubtless get more complicated than it needs to.

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  4. Anon you may be right about Williams; however, I cannot find any reference to the case you mention. If the case refers to the egg-shell skull situation then I did consider that but I didn't mention it because I do not see that the question is whether the injury was foreseen so much as whether the officer was responsible for it.

    Phisheep, I did consider whether death would count as an injury and although I haven't found any case law on the point, I am inclined to the view that it would not count for two reasons:
    a) death is not an injury it is more akin to a state of being (or not being), you wouldn't say that an elderly man who dies peacefully in his sleep was injured by death so I don't think it is an injury.
    b) the law already recognises offences that result in death, the most relevant to this situation being murder and manslaughter. To mount a prosecution for assault by saying the injury is death seems to undermine the more serious offences. As a defencebrief I would certainly challenge such a prosecution as being an abuse of process and I think I'd have a decent enough chance of winning.

    A decision by a coroner's jury may well sway a jury but I do not believe it is definitive evidence of what would happen in a criminal trial. I believe I am right in saying that the jury in a coroner's court decide a case based on the civil standard of proof, which is that something was more likely than not to have been responsible. The criminal test is a much higher hurdle to overcome. If I were defending I would argue that the jury should be directed to ignore the coroner's verdict because they test is lower and thus it would be prejudicial for the jury to consider the outcome of a case decided on potentially different evidence and to a different standard of proof.

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  5. and could he now have a fair trial based on the publicity and the "unlawful killing" verdict???

    what jury could not be tainted with prior knowledge of the case??

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  6. Anon#2, you are right there would be a problem with the fair trial issue, but I think that the court would consider that the reporting has not gone so far that it would be impossible for him to have a fair trial.

    Ultimately, I suspect that the judge would say that senisble members of the public can put aside media coverage and focus on what they hear in the court room. Thus, he or she would probably allow the trial to continue.

    The media have to go quite far in reporting the story with a bias before a court will say a fair trial is no longer possible.

    I did a widely reported case a few years back where we packed the court room with potential jurors (I think there were about 70-odd) and then selected the 12 from those people by asking everybody a series of questions on paper and then having everybody who thought there might be a problem discuss it privately with the judge (conversation was private but was in full sight of all parties) - took forever but must have worked as two co-d's were convicted while my client was acquitted, so we couldn't claim the jury didn't put previous media coverage to one side.

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  7. Must just mention how much I enjoy your blog here (lots).

    You're wrong, though, about the verdict of the coroner's jury. I too thought it was on the civil standard of proof, but it turns out (after reading the full transcript of the summing up) that for a verdict of unlawful killing the criminal standard is used throughout. So it seems that that must show there is a reasonable prospect of conviction, unless of course, there is key evidence that would not be admissible in a criminal trial, and here I can't see any that is significant.

    As to whether death amounts to ABH/GBH, normally I would be with you on seeing that as an abuse of process. But if for some reason manslaughter charges were not preferred (whether on the public interest test or otherwise) I can't see any good objection to charging s20 or s47, as death certainly interferes with the health or comfort of the victim (Miller) and certainly is really serious (Smith). Certainly if the only alternative is common assault and the time has run out - if it is an abuse of process then the abuse is entirely the other way around.

    Would make for some interesting legal argument for sure.

    I'm still expecting manslaughter to be charged here.

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  8. There you go. As expected.

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  9. Phisheep, well done, I stand corrected on the standard of proof and the outcome of the review.

    I am still not convienced though that death alone could amount to an injury for the purposes of an assault charge. Could you cite the ref's for Miller and Smith? They are very common case names.

    I stand by my comments about arguing that the jury should ignore the coroner's verdict as the evidence may not be presented in the same way at the two hearings; in some circumstances there could be no objection to some of the evidence being adduced before the later bench. Sorry this is very brief, I had intended to write more, but I have just been told that the electricity is about to be switched off!

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  10. Thank you DB.

    Nothing spectacularly interesting in those two cases – just the basic definitions: Miller [1954] 2 QB 282 per Lynskey J at p292; DPP v Smith [1961] AC 290. Blame Blackstone's if the references aren't right. They don’t help on whether death itself might count as an injury.

    On that point, I’d approach it from the opposite angle that you do. If, for example, my uncle was in hospital for X-rays and the hospital called me and said he was not injured, I would be quite flabbergasted to find that what they meant was that he was dead but they didn't know why. I suspect the distinguishing thing about an injury as opposed to say a disease is that it is inflicted (perhaps by the victim themselves, accidentally or not, perhaps by another agency, accidentally or not) of course this distinction predates the discovery of the cause of most diseases, but I think it still stands up in ordinary English.

    Taking that approach, I think death would stand up both as an injury and as actual bodily harm, even if the physiological cause of death were not ascertained. The purpose of the medical evidence in many cases seems to me not to be so much necessary to establish the cause of death/injury as to exclude innocent causes. Of course, if we all took it that way we’d have to rely on medical evidence a lot less.

    Can’t find any cases along these lines (hardly surprisingly), though I guess there might be some old ones lying around from before the year-and-a-day rule for murder was abolished.

    I’ll try to come up with a scenario where such a charge might happen, which should help to clarify things, but it might take me a few days – especially if I want to avoid using hypnotism as a device!

    Of course you are right about the trial jury having to ignore the coroner’s jury verdict, and the evidence will of course be presented differently (it’s fairly obvious in what way, but I guess we ought not to be talking about tactics in this particular case right now). I made the point only to get the case past the ‘reasonable prospect of conviction’ CPS hurdle.

    On the evidence as it stands I'm not even convinced this will get as far as the jury.

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  11. hi my husband just got sentenced to 6 years for gbh with intent his intent was to scare the person but his friend used a hammer my husband did not see him use it neither did my brother before sentencing i did a recording of my husbands friend confessing to having used this weapon but the judge said it would not make any difference to sentencing? he did sentence them on the basis of a joint enterprise as the woman cried rape and lured the victim to her house she got the same aswell does this not show that my brothers and my husbands intentions were different to my husbands friend? what do u think the chances are of them both winning there appeal should this recording be used in court of appeal ?

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  12. Anon, I have absolutely no idea from what you have told me and I'd be pretty negligent if I tried to give advice over the internet about a case that I know nothing.

    If you husband wants advice your or he can contact me - my website is www.epdlaw.co.uk/contact.html leave your details and I'll get in touch.

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