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
http://www.solicitorsjournal.com/story.asp?storycode=16699&encCode=979201954BC9278923JTBS737226611
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