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Ian Tomlinson 'unlawfully killed' - 3/5/2011 5:14:41 PM

Olaf

Posts: 23364
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http://www.guardian.co.uk/uk/blog/2011/may/03/ian-tomlinson-inquest-verdict-live-blog

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RE: Ian Tomlinson 'unlawfully killed' - 4/5/2011 5:13:16 PM

Darth Marenghi

Posts: 2948
Joined: 10/10/2010
From: Manchester

At least there's some level of vindication for the Tomlinson family now.

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RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 4:07:02 PM

Spaldron

Posts: 10487
Joined: 6/10/2006
From: Chair

Looks like PC Harwood has gotten away with it. And his violent past has been disclosed, what a shambles.

http://www.bbc.co.uk/news/uk-18900484

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Post #: 3

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 4:33:46 PM

Chief

Posts: 7018
Joined: 30/9/2005
From: The Kingdom, Scotland

quote:

ORIGINAL: Spaldron

Looks like PC Harwood has gotten away with it. And his violent past has been disclosed, what a shambles.

http://www.bbc.co.uk/news/uk-18900484

What violent past?

(in reply to Spaldron)

Post #: 4

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 4:46:16 PM

Fluke Skywalker

Posts: 9540
Joined: 23/4/2006
From: the dark side of the sun

http://www.guardian.co.uk/uk/2012/jul/19/simon-harwood-disciplinary-proceedings

He's been up to no good a few times - a serious failure by the police to allow people like this to remain on the force

'Details of PC Simon Harwood's disciplinary history, disclosed at pre-inquest hearings and pre-trial hearings, include allegations that he punched, throttled, kneed, threatened and unlawfully arrested people.'

(in reply to Chief)

Post #: 5

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 4:49:52 PM

Chief

Posts: 7018
Joined: 30/9/2005
From: The Kingdom, Scotland

Sounds like a top bloke.

(in reply to Olaf)

Post #: 6

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 5:43:55 PM

Phil884

Posts: 295
Joined: 4/5/2006

Been an odd day, news wise. On the one hand, the news reports that crime rates have fallen again and that homicide rates are now at 30 year low. As a result, I feel rather stupid for continually buying into the media's hyperbole on our "crime ridden", "out of control" country. Turns out that things are safer than they've been in a very long time. So, thanks to the police for doing that.

However, on the other hand is this unsettling (for me anyway - the die hard right wingers in the office think it's fine) verdict. It's been over a decade since I studied manslaughter but I recall it requiring the intent of the accused to commit a criminal act that results in death, or being so reckless in their actions that it results in death. However, I may not remember this correctly and am happy to revise my views if I am wrong. On the basis that the mindset of the accused in the circumstances is critical to deciding what intent they held, I don't understand how it would have been biased to disclose Harwood's previous murky actions as surely what he intended to do at the time might be better understood given the context of his past? I don't know, I am not a criminal lawyer.

However, regardless of what was not put to the jury, I am surprised and concerned that acquittal was the result here, taking into account the context and circumstances of Harwood's environment at the time. It appears that the jury have found that approaching Mr Tomlinson, who was steadily ambling away from him, striking him with a baton and then pushing him to the floor is reasonable in the circumstances. It doesn't compute to me that the police can be allowed to do this in the circumstances. Harwood was not under attack. The reports I have read have shown that there was no riot he was actively seeking to contain in his vicinity, neither was he trying kettle an unruly crowd. His situation appears to have been relatively quiet at the material time and surely an officer in a protest must be required to maintain some level of balance and not just react on instinct. Yet, in response to an middle-aged, slow-moving, subdued pedestrian, seeking to get past the police line and having recently been turned away, Harwood took the actions he did which seem psychotically disproportionate in context. Did the jury acquit on the basis they did not think the push caused Tomlinson's heart to fail? Did they not consider the act reckless enough or to be lawful? They seem to have said it was reasonable force but it looks more like an unprovoked assult to the likes of me, thus criminal, or at least reckless, resulting in death. Still, I wasn't in court each day.

I have no particularly axe to grind against the police force and I am sure that most of them do a fantastic job but what's concerning my liberal wishy washy mind is that we now seem to live in a country where firearms officers can shoot Brazilians on tubes without delivering due warning and it will only be the subject of an inquest and not a prosecution; where the default reaction of the Met to every large protest, such protest being protected - whether you like it or not - by the Human Rights Act, is to immediately kettle protesters for long periods of time without managerial guidance on being sensibly discretionary in the circumstances and even though kettling is meant to be a measure of last resort. Now the Met's vetting policy allows it to retain thugs and officers can seemingly attack people with even greater force. This is all deemed to be justifiable in hindsight when, to me at least, hindsight does not absolve these actions and they are actions that were preventable at the time. All the while, Labour, followed by the Coalition legislate away our civil liberties. I find it fucked up and upsetting.

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Post #: 7

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 6:12:07 PM

boaby

Posts: 2788
Joined: 29/12/2006
From: Aberdeenshire

I'm sure I read in the Indy that there's only been 13 Met cops convicted of a criminal offence while on the job in the last decade despite a phuckload of complaints.

I also remember a report that there are around 1000 police officers with a criminal record working in England and Wales, with the Met having the biggest concentration. Might have been the Mail. I dunno if that means it's shady as phuck or remarkable 'cos it's the Mail digging at the cops.

Cops are never popular but it seems like there's an increasing lack of trust in them.

Also, if a man is "unlawfully killed" does that not at least imply that someone unlawfully killed him?

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Post #: 8

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 6:23:13 PM

Spaldron

Posts: 10487
Joined: 6/10/2006
From: Chair

quote:

ORIGINAL: boaby

Also, if a man is "unlawfully killed" does that not at least imply that someone unlawfully killed him?

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Post #: 9

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 7:19:54 PM

boaby

Posts: 2788
Joined: 29/12/2006
From: Aberdeenshire

Grauniad

1433 people died in custody or after contact with Police since 1990. Number of successful manslaughter convictions? 0.

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Post #: 10

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 8:19:24 PM

Dpp1978

Posts: 1012
Joined: 2/4/2006

This is one of those cases where you have to look at the law as it applies with the detached critical eye for it to make any sense.

There are two types of manslaughter: voluntary and involuntary.

Voluntary manslaughter is where a person intends to kill or cause serious injury (which is murder) but relies on a defence to reduce his culpability (diminished responsibility and provocation being the chief of these).

Involuntary manslaughter occurs there was no discernible intent to cause death or serious injury, yet by his actions the defendant causes death. I have seen no evidence that Harwood had the relevant intent to be charged with murder so an involuntary manslaughter charge is something I am willing to accept as entirely appropriate.

There are three types of involuntary manslaughter: constructive manslaughter; gross negligence manslaughter and reckless manslaughter. The first two are good law but the third is questionable.

Constructive manslaughter occurs where a person is carrying out a criminal act and by their act or omissions during that enterprise causes someone's death. For that reason it is sometimes called unlawful act manslaughter. There is no credible notion that, whatever his actions that day became, Harwood was there in pursuit of a criminal enterprise when he acted. This is key. He must have already been in the process of committing a crime. He wasn't so this type of voluntary manslaughter can be ignored.

Gross negligence and reckless manslaughter are very closely related. Until 1994 reckless manslaughter was good law. Basically reckless manslaughter was where a person saw a risk that death or serious harm might happen if they undertook their course of action, and nevertheless went ahead and did it anyway. If someone's death is the result of that reckless act the person responsible should be liable for manslaughter.

But the landmark Adomako case seemed to relegate it to the history books. Here the House of Lords decided the proper test for this type of involuntary manslaughter should be gross negligence.

Negligence is where a person owes another a duty of care but falls short of this duty. Those god-awful claim line adverts are capitalising on negligence in the civil arena. Duties of care are all around us. We enter into them every day when we go about our lives.

For a person to be charged with gross negligence manslaughter they have to owe a duty of care and because of their negligent actions or inactions cause the death of another. However they have to be not just negligent but "grossly negligent", which is one of those unhappily nebulous phrases which litter English jurisprudence and infuriate law students up and down the land.

The test is: something is grossly negligent if it ,"...showed such a disregard for the life and safety of others as to amount to a crime and deserve punishment." per Lord Hewitt CJ in R v Bateman [1925].

Now to apply this to the facts of the case, did Harwood's actions satisfy this test. Now what he did was clearly a battery. Force was applied to Tomlinson's person, but was his action negligent? Well possibly but it is far from open and closed. Personally I'd say it was negligent but it is eminently debatable. Assuming he was negligent was he grossly negligent? Here I am far less happy to say he was. Remember his actions, taken away from the outcome, have to fall so far below the standard of care owed, given all the circumstances, to render them criminal.

Being objective, if it wasn't for the fact Tomlinson died (and I am aware how callous this statement is) I doubt there would have been much made of the shove. I'm sure plenty of others received similar or worse treatment at the hand of the Police that day which went unreported and unlamented by the world at large. It would take a degree of prescience passing into the arena of unnatural to have foreseen that Tomlinson would receive anything more than scrapes and/or bruises from the blow to his person. That doesn't make it right, far from it, but it does give context to the situation.

If he was grossly negligent so are any of the otherwise good cops who make bad decisions in the heat of the moment. Pretty soon there would be no-one left to police the streets and where would any of us be then?

In short I think it a massive stretch to call him grossly negligent beyond all reasonable doubt, which is what you would have to do to convict him.

Which leaves reckless manslaughter. I stated earlier that Adomako made it bad law, but the door remains ajar. The Lidar case in 2000 used it to convict a person who drove away with a person hanging out his car's window who was subsequently dragged under the wheels and killed. It is unclear but reckless manslaughter is probably only good law for cases involving motor vehicles.

In any case recklessness is probably harder to prove than gross negligence: you have to show the saw the risk before they took it. Could you state beyond reasonable doubt that Harwood saw a risk that his shove would cause serious injury or death? I certainly couldn't.

And that is important. Even in Lidar it was stated that the risk must be of "serious injury" (another nebulous phrase).

So I am fairly well satisfied that the case is not the legal monstrosity I might want it to be. That isn't to say justice was done, but good law and justice are not mutually inclusive.

quote:

ORIGINAL: Phil884
...such protest being protected - whether you like it or not - by the Human Rights Act, ...

Article 11 is, as I suspect you know, not an absolute right and can be set aside in favour of public safety and the prevention of disorder or crime. I may not like some of the tactics the Police use but I doubt they breach the Human Right Act.

quote:

ORIGINAL: boaby

Also, if a man is "unlawfully killed" does that not at least imply that someone unlawfully killed him?

An inquest has a different, far lower standard of proof: on the balance of probabilities rather than beyond reasonable doubt.

Also they don't have to worry about such niceties as what to charge a person with and whether the case against them will stand up.

Just because the inquest calls it an unlawful killing according to their standards doesn't mean a criminal court can meet theirs. As illustrated by this sad case today.

(in reply to Spaldron)

Post #: 11

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 8:38:19 PM

boaby

Posts: 2788
Joined: 29/12/2006
From: Aberdeenshire

Bizarre.

What's the point in the death inquest if it has little/no impact on a resultant criminal prosecution?

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Post #: 12

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 9:37:22 PM

Dpp1978

Posts: 1012
Joined: 2/4/2006

quote:

ORIGINAL: boaby

Bizarre.

What's the point in the death inquest if it has little/no impact on a resultant criminal prosecution?

A coroner's inquest is sometimes essential for administrative purposes. In some cases, including where foul play is suspected, a death cannot be registered without one.

It acts as a filtering system for the criminal justice process. If you can't convince an inquest someone unlawfully killed the deceased with their lower standard of proof there is little chance it will stand up against the criminal standard. All an inquest has to do is show some unspecified person unlawfully killed the deceased. A criminal trial has to prove a specific person was responsible. Very different undertakings in the vast majority of cases.

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Post #: 13

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 9:47:46 PM

SWOTBM

Posts: 1955
Joined: 6/5/2007

quote:

ORIGINAL: Dpp1978

Constructive manslaughter occurs where a person is carrying out a criminal act and by their act or omissions during that enterprise causes someone's death. For that reason it is sometimes called unlawful act manslaughter. There is no credible notion that, whatever his actions that day became, Harwood was there in pursuit of a criminal enterprise when he acted. This is key. He must have already been in the process of committing a crime. He wasn't so this type of voluntary manslaughter can be ignored.

But as I understood it, he would have to performed an unlawful act, intentionally performed, in circumstances rendering it dangerous and which caused death. Beating and pushing a bystander to the ground is not a recognised police power. Surely the prosecution could have used a battery or OAPA as the unlawful act.

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Post #: 14

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 9:54:09 PM

boaby

Posts: 2788
Joined: 29/12/2006
From: Aberdeenshire

quote:

ORIGINAL: Dpp1978

quote:

ORIGINAL: boaby

Bizarre.

What's the point in the death inquest if it has little/no impact on a resultant criminal prosecution?

A coroner's inquest is sometimes essential for administrative purposes. In some cases, including where foul play is suspected, a death cannot be registered without one.

It acts as a filtering system for the criminal justice process. If you can't convince an inquest someone unlawfully killed the deceased with their lower standard of proof there is little chance it will stand up against the criminal standard. All an inquest has to do is show some unspecified person unlawfully killed the deceased. A criminal trial has to prove a specific person was responsible. Very different undertakings in the vast majority of cases.

Yeah. I get it. But:

"some unspecified person unlawfully killed the deceased."

Who else, in this case, other than the copper could be that "unspecified person"?

How is this not a stick-on?

Now that the copper has been let off does that mean the coroner's verdict is now overturned? It's been established in court that the injuries leading to the death of the victim were inflicted on him by the police. Yet the man who inflicted the injuries has been cleared. So has the context established in court overridden the coroner's verdict? Is the death now not unlawful because the formerly "unspecified person" has been specified?

How is this not a mindphuck?

_____________________________

"Aberdonians, and with some degree of purpose and right on their side, have absolute contempt for Glasgow. There is a side of Aberdonians who, let's be absolutely honest about this, feel so superior to Glasgow that you can measure it by the yard."

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Post #: 15

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 10:56:56 PM

Dpp1978

Posts: 1012
Joined: 2/4/2006

quote:

ORIGINAL: SWOTBM

quote:

ORIGINAL: Dpp1978

Constructive manslaughter occurs where a person is carrying out a criminal act and by their act or omissions during that enterprise causes someone's death. For that reason it is sometimes called unlawful act manslaughter. There is no credible notion that, whatever his actions that day became, Harwood was there in pursuit of a criminal enterprise when he acted. This is key. He must have already been in the process of committing a crime. He wasn't so this type of voluntary manslaughter can be ignored.

But as I understood it, he would have to performed an unlawful act, intentionally performed, in circumstances rendering it dangerous and which caused death. Beating and pushing a bystander to the ground is not a recognised police power. Surely the prosecution could have used a battery or OAPA as the unlawful act.

It's been the best part of a decade since I read these cases and I wrote the post from memory. Your studies will be fresher in your mind so I'll happily take your word for it.

This might be where his reasonable force argument came into it: he used reasonable force in the circumstances against a person creating a public order offence (as he perceived him) in the heat of the moment. The Police are allowed to use reasonable force in the carrying out of their duties. And the jury accepted it.

Not sure I'd buy it, but I wasn't on the jury.

Cheers for clearing that up.

quote:

ORIGINAL: boaby

Yeah. I get it. But:

"some unspecified person unlawfully killed the deceased."

Who else, in this case, other than the copper could be that "unspecified person"?

How is this not a stick-on?

Now that the copper has been let off does that mean the coroner's verdict is now overturned? It's been established in court that the injuries leading to the death of the victim were inflicted on him by the police. Yet the man who inflicted the injuries has been cleared. So has the context established in court overridden the coroner's verdict? Is the death now not unlawful because the formerly "unspecified person" has been specified?

How is this not a mindphuck?

It couldn't be anyone else, but that doesn't matter as the coroner doesn't worry about the who, just the how.

While the coroner will undoubtedly have known the identity of the accused, it was irrelevant to his verdict. Once he decides it was an unlawful killing his role is over and it is for the prosecution to make the case at trial. They worry about the who.

This case is interesting as it is not what we think of when we think of a typical criminal trial. Usually we'd imagine a clear cut crime but the question is whether the defendant did it. Here we have a clear cut defendant and the question is whether or not what he did was a crime. Apparently it wasn't.

The coroner's verdict is not overturned as it is a separate matter to the criminal trial. He was still unlawfully killed on the balance of probabilities, but not beyond reasonable doubt.

The family of the deceased will pursue this in civil court, with the same evidential burden as the coroner, so it has some value there.

(in reply to SWOTBM)

Post #: 16

RE: Ian Tomlinson 'unlawfully killed' - 19/7/2012 11:43:30 PM

Chief Wiggum

Posts: 1921
Joined: 30/9/2005

If I'm reading the reports correctly, he was found not guilty as the jury decided that he used "reasonable force".

So how does that work with the whole "Eggshell Skull" part of manslaughter? (i.e. that if you hit someone who has a skull as fragile as an eggshell, with the same force as you punch a normal person, irrespective of if you knew of the victims situation, that would count as manslaughter)

So, for example is it now the case that, should a burglar (who has an eggshell skull) break into your home (where I think you can use reasonable force to protect your property) if you hit them and they died you wouldn't be liable for manslaughter?

has this actually changed anything in English and Welsh Law, or is it just business as usual?

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Post #: 17

RE: Ian Tomlinson 'unlawfully killed' - 20/7/2012 12:32:33 AM

Dpp1978

Posts: 1012
Joined: 2/4/2006

quote:

ORIGINAL: Chief Wiggum

If I'm reading the reports correctly, he was found not guilty as the jury decided that he used "reasonable force".

So how does that work with the whole "Eggshell Skull" part of manslaughter? (i.e. that if you hit someone who has a skull as fragile as an eggshell, with the same force as you punch a normal person, irrespective of if you knew of the victims situation, that would count as manslaughter)

So, for example is it now the case that, should a burglar (who has an eggshell skull) break into your home (where I think you can use reasonable force to protect your property) if you hit them and they died you wouldn't be liable for manslaughter?

has this actually changed anything in English and Welsh Law, or is it just business as usual?

The thin skull rule goes to causation and is applicable to all offences against the person, as well as to other aspects of law. To successfully prosecute a crime you have to show an unbroken chain of causation between the defendant's actions and the criminal outcome. If they can show the chain was broken the case must fail.

It is best illustrated by the leading case of Blaue.

Blaue stabbed a woman after she spurned his advances. She was a Jehovah's Witness and refused a blood transfusion which would have saved her life. He claimed that this was the real cause of her death and the chain of causation was broken. The court rejected this idea out of hand citing the legal maxim, "you take your victim as you find him".

This is still the case here. Harwood could not have claimed that Tomlinson's poor health was the real cause of his death and that this broke the chain of causation.

The use of reasonable force in the prevention of a crime is a justificatory defence: that is one which renders behaviour which would be criminal as lawful acts.

They operate separately.

Proving causation is one of the steps necessary to show a crime was committed. To prosecute you must not only show a crime was committed, but also that there was no valid defence.

It appears that based on SWOTBM's reading of the law, which is in all likelihood the right one, while Harwood's actions probably did constitute a crime, there was a valid defence he could rely on which justified his actions.

So no, this case doesn't change anything and it is business as usual.

(in reply to Chief Wiggum)

Post #: 18

RE: Ian Tomlinson 'unlawfully killed' - 20/7/2012 3:07:41 AM

NinjaShortbread212