Solicitors Journal Cover Story -Power Trip

Power trip
26 July 2010


By Sophie Khan

Deaths under police restraint must not be treated as lesser crimes, argues Sophie Khan

“I can’t breathe, you’re killing me,” were the last words of Frank Ogboru, a Nigerian businessman who died on 26 September 2006 following a restraint by four Metropolitan Police officers on a roadside in Woolwich, South London. The jury on 28 April 2010 returned a narrative verdict after a three-week inquest before Selena Lynch, deputy coroner for London (Inner South), who concluded: “All officers directly involved with the control and restraint of Mr Ogboru were trained to recognise the risks factors of positional asphyxia. The officers did not act in accordance with the Standard Operating Procedure in getting Mr Ogboru into a safe position as soon as possible after control was achieved. Had the risk factors been correctly identified and acted upon it is likely that Mr Ogboru would have survived.”

Although these chilling words did not bring comfort to the family of Mr Ogboru, they have set a precedent in police restraint deaths and have finally corrected the balance that was desperately needed between the two concepts of ‘control’ and ‘risk’ when police officers conduct a restraint.

These issues have been a hot topic of debate for several years. However, they have failed to address the points that would have prevented the death of my client’s husband and it is now time to look at the lessons that have been identified in the Ogboru inquest and develop them further, so that there is a real and visible change in the culture of police restraints and an acknowledgment that risk implications are taken into equal considerations during every occasion.


Training gap

The Ogboru inquest centred around the medical implications of positional asphyxia, the risks of which have been well known in the police service since 1995, and as a result have been incorporated into the national training. The report, ‘Considerations for Safer Restraints’, published by the Metropolitan Police Service on 23 March 2005 defines positional asphyxia “as occurring when ‘the position of the body interferes with breathing, resulting in asphyxia’. It is likely to occur when a person is in a position that interferes with inhalation and/or exhalation and cannot escape that position. Positional asphyxia can occur extremely rapidly.”

There are further examples of guidance available to the Met Police officers on the risk factors, and signs and symptoms of positional asphyxia in the officer safety manual which forms the basis of active training that is provided to all officers annually. The central tenant of the training is that officers are taught to monitor the person’s condition following a take-down and that the person must be repositioned from the prone, face-down position at the earliest opportunity; any delay to this process will need to be justified. It was this lack of justification that led the jury to question the actions of the four officers and highlighted that there is still a gap in the training that is being provided by the police.

Similar thoughts were also expressed by experts at the inquest and during the independent investigation into Mr Ogboru’s death by the IPCC, which led to local recommendations being made to improve the present training. First, the training on positional asphyxia needs to be embedded deep in the mind of the officers so that they are alive to the risks when they are distracted in obtaining control. And, second, that when a number of officers are involved in the restraint, a safety officer should be appointed to monitor visible signs of life and that officers should work as a team rather than trying to achieve their own area of compliance.

Unfortunately, Mr Ogboru’s death is not an isolated case and there have been two other recent police-related restraint inquests which have demonstrated that there is a pattern in the lack of recognition towards the risks of medical implications during a restraint. The jury in the inquest of Paul Coker who died at Plumstead police station on 6 August 2005 also returned a critical narrative verdict and found that Coker was suffering from a variant of excited delirium (otherwise known as acute behavioural disorder) and that the officers failed to recognise the symptoms at the scene of arrest. The inquest also heard evidence on the varying ways in which the police officers interpreted the training they received on excited delirium and the treatment of people suspected of suffering from the condition as a medical emergency.

Similar to positional asphyxia, the risks of excited delirium have been well documented in police training and safety guidance for years and the ‘Considerations for Safer Restraints’ again provides a definition which is clear and simple to understand: “Excited delirium is when a person exhibits violent behaviour in a bizarre and manic way rather than simply being violent.” A person in that state is of particular concern as they can go into cardiac arrest suddenly, during or shortly after a violent struggle.


The circumstances surrounding the death of Ricky Penfold is another example of how police officers failed to take on board the ‘risks’ of the restraint and following his restraint on 20 October 2008 he subsequently died at Whipps Cross Hospital on 23 October 2008. The jury give a narrative verdict which found that the position in which Penfold was restrained by the police could have contributed to his death and that the police failed to identify that Penfold was suffering from excited delirium.

The combination of the above police restraint deaths along with other deaths in custody has led to the creation of an Independent Advisory Panel on Deaths in Custody which provides independent advice and expertise to the Ministerial Board on Deaths in Custody since 1 April 2009. It also provides guidance on policy and best practice across sectors and makes recommendations to ministers and heads of key agencies. Although the work of the panel is welcomed in the area of police restraint deaths, there needs to be a realisation on the panel that the onus to deliver change is on the police service itself and that without the police’s efforts there can be no recognisable difference in policy.


Reducing the risk

The coroner in the Ogboru inquest also made a rule 43 report. Pursuant to rule 43 of the Coroners Rules 1984 (as amended), a rule 43 report is made when the evidence provided at an inquest gives rise to concern that circumstances creating a risk of other deaths will re-occur or continue to exist, and that action could be taken to reduce or eliminate that risk. The report is then sent to the commissioner of the Metropolitan Police or the chief constable, the lord chancellor and copies to the family’s legal representative and other interested parties. The coroner’s concerns in our inquest centred around the varying degrees of experience and training of the four officers and the fact that all of them had positional asphyxia at the back of their minds rather than the forefront when restraining Ogboru. The coroner also made suggestions for different training or training that is delivered in a different way to be considered and, although we have yet to receive a detailed response from the commissioner within the specified 56 days from the report, I am confident that the commissioner will address the specific concerns raised by the jury and that a viable working direction will be made.

Notwithstanding that, there is a well-known issue among inquest practitioners that there are real restrictions to the follow-up procedure once a rule 43 report is made, as there is no compulsion on the police to provide a response. However, this could be an area where a collaboration with the Independent Advisory Panel on Deaths in Custody could lead to a collective step being taken to raise the profile of police forces that fail to respond to the rule 43 reports and to then pressurise them into implementing the lessons that have been identified in the inquests.


Bringing prosecutions

It is not just learning lessons that need to be considered following the conclusion of the inquest proceedings. In some cases the evidence presented to the court prompts questions regarding whether there is now enough evidence to bring criminal charges – especially if new evidence is presented to the prosecuting authorities. However, there is a history of unwillingness to bring prosecutions against police officers following restraint-related deaths and police conduct resulting in death – highlighted by the DPP’s decision not be bring any criminal charges against the police officer who struck Ian Tomlinson at last year’s G20 demonstrations.

Recently, there has been a change in the approach taken by public bodies involved in some inquests, especially when there is overwhelming evidence presented to the court which demonstrates that an unlawful act has been committed and, as in the Ogboru case, the prosecuting authorities may revisit their decision to bring charges. The prosecuting authorities need to weigh the evidence against the prospect of bringing a successful conviction at court, but they also need to recognise that the public want to see that justice is being done.

Whether criminal charges are to be brought against the four officers who restrained Ogboru is yet to be seen, but the prosecuting authorities need to carefully consider the ramifications that such charges and successful convictions will have on the police culture towards restraints and send a clear message to Mr Ogboru’s family and to the public that public officers will not be treated as if they are above the law.


Postscript:

Sophie Khan is a solicitor specialising in actions against the police at Imran Khan & Partners. Contact: sophiek@ikandp.co.uk

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Solicitors' Journal - A question of independence

A question of independence

25 May 2010

By Sophie Khan

Independent inquiries following complaints against the police are still a rarity and the IPCC must recognise its responsibility to undertake more investigations, says Sophie Khan

Article 3 investigative duty remains a grey area and much still needs to be done to clarify when the state has an obligation to conduct an independent investigation. On 12 March 2009, the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, set out his view that police complaints involving arguable breaches of article 3 should be investigated independently of the police. However, at the moment the police are still investigating the police and the obligation to hold an independent investigation is based on a series of tests: is there an arguable breach of article 3? Is there a serious injury? Are there any other means to elicit the relevant facts? Would the outcome of the investigation be proportionate to costs? And finally, is it in the public interest?

It seems that only when all the boxes are ticked can an independent investigation be considered, and, from the Home Affairs Select Committee report published on 7 April 2010, it is clear that it is on very few occasions that such investigations will take place. In the period of 2008-09, out of 31,259 complaints, only 88 were independently investigated by the IPCC, representing less than one per cent of all complaints that were held to be arguable breaches of article 3.

Arguable breach

If an arguable breach is identified then article 3 provides: “No one shall be subjected to torture or inhuman or degrading treatment or punishment.” In Assenov v Bulgaria [1999] 28 EHRR 652 ECHR: “The court recalls that ill treatment must attain a minimum level of severity if it is to fall within the scope of article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim.” In the case of R (P) v Secretary of State for Justice [2009] EWCA Civ 701, the court found that it “must involve a real and immediate risk to life”. However, in the case of Saya v Turkey Application No. 4327/02 Judgment 7 October 2008, the court stated that in respect of some of the applicants who had suffered injuries which included tenderness to the back of the legs and back, scratches on the back and tenderness and bruising there had also been a breach of article 3. This clearly shows that there is a wide interpretation of the minimum level of severity and whether there is an arguable breach will greatly depend on the circumstances of each case.

The extent of the arguable breach also has an impact on the scope of the inquiry and what might satisfy it. In R (AM & Ors) v (1) Secretary of State for the Home Department (2) Kalyx Ltd & Bail for Immigration Detainees (Intervener) [2009] EWCA Civ 219, the court acknowledged there was an arguable breach after detainees suffered ill treatment by the detention staff during a disturbance caused by other inmates. One of the points arising from that case was that the threshold for breaches needed to be more clearly defined. The dissenting judgment of Longmore LJ is a good example of the tensions at work: “It is not difficult to imagine cases of alleged article 3 mistreatment which would meet a full independent inquiry. But every allegation of a breach of article 3? There must surely be some sense of proportion.”

The proportionality argument should also not be ignored and needs to be taken into consideration at an early stage in deciding whether your client’s case will meet the criteria for an independent investigation. This was the approach that I adopted in my client’s case who had been tasered five times by officers of the Greater Manchester Police during an epileptic seizure he was having at his local gym. The effects of the tasers resulted in my client spending nearly two weeks in hospital recovering from organ failure and nerve-related damage. Even through the injuries that my client suffered constituted an arguable breach, there was no immediate plans to carry out an independent investigation. It was only when I highlighted the severity of the injuries and that police officers in the Professional Standards Department would lack the independence and impartiality to investigate such a complaint did the IPCC finally agree to hold an independent investigation.

Level of independence

The level of independence is therefore also an important factor in the decision-making process by the IPCC, and if a strong argument can be made on this point based on the circumstances of your client’s case then you are half way there. In the case of SP v Secretary of State for Justice [2009] EWHC 13 (Admin), Pitchford J held: “I am equally persuaded that past hierarchical or institutional connection between the investigator and someone ‘implicated’ could well cause an objective lack of practical independence. That may arise because the investigator had once served with the person implicated in either a junior or senior capacity, whether or not they had personal contact when serving together.” Practical independence was defined in the case of Porter v Magill [2001] UKHL 67 by Lord Hope: “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that a tribunal was biased.”

Although the lack of practical independence in the police investigating the police is an obvious point that can be made you need to take into consideration that the IPCC have a discretion in the form of investigation they can conduct (schedule 3, paragraph 15(2) of the Police Reform Act 2002) and can comply with the practical independence point by referring the complaint to a different police force to investigate. However, the unconscious bias of the police investigating the police, the Re Medicaments test can not be so easily remedied, “it is the public perception of the possibility of unconscious bias which is the key”. In those circumstances only an independent investigation will suffice and be effective, and this point was held by Nicols J in Morrison v IPCC & Commissioner of Police for the Metropolis & Secretary of State for the Home Department [2009] EWHC 2589 (Admin): “He is entitled to have that claim effectively investigated. To be effective, the investigation must be independent. It is also accepted that the local investigation currently being carried out by the Met Police will not be independent.”

Effective investigation

Another factor which is central to an independent investigation is defined by the court in Jordon v UK (2001) 37 EHRR 52, which stated that: “The investigation must be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible.” Jackson J in R (Wright) v Secretary of Home Department [2001] EWHC Admin 520 goes one step further and says: “Such investigation is required, in order to maximise future compliance with the articles.” The purpose in other words is neither purely compensatory nor purely retributive, nor is it necessarily restricted to what has happened to the particular victim.

The effectiveness of the investigation is an important point as the IPCC justify that it will only be in breach of the obligation under article 3 if none of the suggested alternatives, singly or together, are sufficient referring to the prospects of either criminal and/or civil proceedings. However, that view is no longer recognised as a means to fulfil the criteria for an effective investigation and the judgment of Sedley LJ in R (AM & Ors) goes some way in removing that presumption: “Litigation is designed to secure individual redress, prosecution to establish individual culpability.” He does, however, make the distinction that the “average wrongful arrest, assault or false imprisonment claim” can be effectively investigated through civil proceedings and this was reiterated in the judgment of Longmore LJ who held that civil proceedings could be one means of discharging the investigative obligation under article 3.

However, he noted that in Banks v UK the court had confined the relevance of civil proceedings to allegations of negligence, and did not comment more generally on the materiality of civil proceedings as a means of investigating alleged assaults by the police.

Reference should also be made to the Home Affairs Select Committee report which echoes the arguments made by complainants that the complaints procedure can not be held to be an effective investigation and comments to that effect can no longer be considered as ‘broad generalisations’. The committee also heard that the appeals to the IPCC did not increase the possibility that there would be a prosecution and that any deficiency in the initial police investigation into the complaint was not automatically remedied. The local investigation and the appeal process can not be seen as a credible way of investigating serious complaints and will not satisfy the obligations of the IPCC if an arguable breach is identified.

Public interest

The last test that needs to be considered is whether it would be in the public interest to hold an independent investigation. The case of R (Amin) v Secretary of the Home Department [2003] UKHL 51 sets out the minimum requirements in Lord Bingham of Cornhill’s judgment which includes the need for a “sufficient element of public scrutiny”.

To meet this test there will need to be wider issues in relation to your client’s complaint; however, section 22 of the Police Reform Act 2002 states: “An independent investigation is conducted by IPCC staff into incidents that cause the greatest level of public concern, have the greatest potential impact on communities or have serious implications for the reputation of the police service.”

Although the average wrongful arrest, assault or false imprisonment claim may not fall within this category this does not prevent the argument being made in cases where there can be shown to be a significant impact on community relations with the police in not holding an independent investigation.

The local investigations conducted by the police are far from being independent or effective and are more like a ‘police-controlled exercise’ rather than an investigation. Although the IPCC has limited resources to investigate every arguable breach of article 3, it is not acceptable that it can not investigate more than one per cent of all complaints.

The new IPCC Statutory Guidance could have been the opportunity to address this issue and for the IPCC to take the necessary steps to impose a stricter criteria for investigating police assaults and address the damaging impact that they have on the perception of the police.

However, the more serious injuries do not feature highly in the new guidance and shows a reluctance by the IPCC to recognise the problem that still exists in the police complaints procedure.

The IPCC cannot forget that it is the police ombudsman and that although the cooperation of the police is essential for a complaints procedure to work that does not mean it should continue to relinquish its mandatory duty to those who are meant to answer to it.

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Solicitors' Journal - Charging Ahead

Charging ahead 22 June 2010

By Sophie Khan

The new government's position on charging powers owes more to reassuring the police about impending budget cuts than considering the impact on the wider community, says Sophie Khan

You might have thought that the first public speech the new home secretary, Theresa May, should have made was to a community group dedicated to upholding civil liberties, especially as ‘civil liberties’ has become the new brand word for the Conservatives. Instead, she chose to address the Police Federation on 19 May 2010, and proposed to hand back more power to the police under a ‘new deal’ in policing.

Licence to police

For the first time in seven years, statutory charging decisions for minor offences, which have since the introduction of the Criminal Justice Act 2003 vested with lawyers at the CPS, would be made by custody sergeants in their ‘licence to police’ alongside existing extraordinary powers of arrest and charge for public order and road traffic offences.

Charges for common assault, theft and breach of bail would be solely decided by the police under the pretext that if there is “more freedom to the police professionals; more power to the people”. How this will relate into day-to-day policing may not be as easy as May thinks, especially as there are many situations involving police officers where the charging decision is taken because of a vested interest in ‘pinning’ something on the individual to ‘save face’.

Just a few days before May’s speech, District Judge Henderson sitting at Highbury Magistrates’ Court expressed his “grave misgivings” about a case that had been brought before him by the police, and felt that the police had charged my client with a minor offence in the hope that he would plead guilty. Fortunately, he was found not guilty and is now pursuing a civil action against the police to include malicious prosecution.

Although my client was able to pay for the costs of his defence, many other people in the same position do not have the same resources and find it extremely difficult to defend themselves against the police which leads to fines and convictions that they should not have on their records. The growing appetite of the police to abuse their powers in these situations has not being recognised and I do not think that May has fully considered the consequences of handing back further charging decisions to the police.

Lord Auld in 2001, following the inquiry of the criminal justice system, highlighted the numerous miscarriages in justice and mistakes that had been made by the police in their charging decisions. May needs to take this on board before she reverses a highly important aspect of the criminal justice system which has led to fewer miscarriages of justice and unviable cases being dropped at an early stage – saving millions of pounds of taxpayers’ money. The statutory charging decisions need to remain with the CPS, not just because lawyers are best placed to make the decisions based on the facts of the case but also because the individual suspected of an offence has the right to have his case seen by a CPS lawyer to preserve the integrity of the system. The input of lawyers in the decision-making process at that stage should not be underestimated, particularly as the public is shouting out for a stronger civil liberties society where there is a visible balance between the public and the state. The proposed ‘new deal’, however, goes against the grain of what the public expected of the new coalition government and seems to have ignored the mood of the time.

Democratic accountability

Although May has indicated that the “new freedom must come with strings attached”, she seems to have again ignored the strong opposition to her plans to have elected police commissioners. The Association of Police Authorities has already publicly stated that the plans will be “strongly opposed... but welcome proposals on cutting bureaucracy”. This could leave a situation which would take us back to the dark days of policing where the word ‘accountability’ did not even appear in the police’s dictionary.

Cutting bureaucracy will see the scrapping of the stop-and-search form, which will come as a heavy blow to the tireless work carried out by monitoring groups, such as the Westminster Police Stop and Search Monitoring Group, which over the years has successfully worked with the local police to establish greater accountability for individuals stopped in the Westminster area. May, as well as undermining the hard work of these groups, will also limit the statistics that could then be used to show patterns of discrimination in the use of stop and searches towards a section of society.

Without accountability locked into the procedure there will be more infringements of civil liberties with no means of recourse or redress – and recent cases such as Gillan and Quinton v UK, in the European Court of Human Rights earlier this year, would not have been able to show the disproportionate use of stop-and-search powers in section 44 of the Terrorism Act on black and Asian individuals.

The Equality and Human Rights Commission has also relied on stop-and-search statistics to raise the profile of police forces that continue to use the powers in a discriminatory way, and has written to the Metropolitan, Dorset, Leicestershire, West Midlands and Thames Valley police forces and given them until Friday last week (18 June 2010) to provide evidence as to the steps they will be taking to comply with equalities legislation. The home secretary may have thought that by making her maiden speech to the Police Federation she would be able to appease the police who will soon be subject to budget cuts. However, politicians need to be more realistic in the policies they are advancing and consider the full consequences for the whole community before making such public statements.

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