I start to write this post with some trepidation, as I know that I’m likely to get some stick for it. However I think it important that some points be raised. I am a Criminal Defence Solicitor, and on a daily basis I represent people accused with offences some trivial, some like Murder and Manslaughter very serious. I take my job seriously and approach each case I have questioning the evidence put before me on both sides.
In any criminal case evidence is the key, can the CPS prove the case against the client. Has the client got evidence that can cast doubt on the prosecution evidence. I am in cases where my client tells me he is not guilty striving to prove that. Not guilty is not innocent, but it does mean that the prosecution have not proven their case beyond reasonable doubt, or in the more usual terms “so the jury can be sure of guilt”.
I do not think the system is without fault. What I do think is that it is the system we have to work within. Until someone can show a system that works better, and implements it this is what we have. I accept in full there are times when the system makes a decision that is wrong, but remain convinced that for the most part it gets it right.
Today, less than a week after the public became outraged about the Terry verdict, a jury of twelve independent people found PC Harwood not guilty of the manslaughter of Ian Tomlinson. As happened last week, my twitter feed went mad and expressed outrage and indignation at the verdict. The outrage and indignation reached fever pitch when it became clear that the court had not been told about PC Harwood’s disciplinary record and that he had a number of allegations made against him. Fever pitch reached hysteria when it disclosed that Harwood had previously had an allegation made against him which was not examined when as he retired on medical grounds and then re-applied to another force and transferred back to the Metropolitan Police.
People I follow and thousands that I don’t follow on Twitter made statements about thuggish behaviour, animal, bully and so forth. Many thought that justice had not been served, many suggested that Harwood had somehow managed to use the system to his advantage. An immediate clarion call was put forward to demonstrate outside of Scotland Yard at the verdict. The consensus seemed to be that Harwood had quite simply gotten away with murder.
I really do not know what happened on the day Mr Tomlinson died, I do not know what evidence the inquest jury were provided, I do not know what evidence was put before the jury at Harwood’s criminal trial and I do not know what went through the minds of the twelve jurors when they were asked to decide so that they were sure that the actions of PC Harwood resulted in the death of Ian Tomlinson. Like everybody else I have seen the video footage, I have read the news and read the commentary. With the exception of the video footage which I am sure would have been played to the jury all the news stories and commentary do not amount to evidence. It is only when you have the benefit of that evidence that anyone could rightly make an informed decision.
I think that some of the amazement and hysteria was generated by two things. That a previous jury in a Coroners Inquest had made a ruling that Ian Tomlinson was unlawfully killed, and that the jury were not told that PC Harwood had previously faced allegations of misconduct whilst in uniform.
A Coroners Inquest is quite different from a criminal trial. A criminal trial is adversarial by nature, the evidence is presented and tested by the lawyers. A Coroners Inquest is inquisitorial, there is only limited questioning of the evidence presented. The rules of what is admissible as evidence are less strictly enforced, for example hearsay evidence is allowed, and to a lesser extent personal opinion can be part of the evidence.
Normally, a coroners court must only be satisfied on the balance of probabilities but in cases of unlawful killing the jury must be certain beyond reasonable doubt or so that they are sure. The same standard as in a criminal court. The Coroner will direct the jury as to the available verdicts and leave it to the jury to reach a verdict often with a number of possibilities. The verdict in this case was unlawful killing as a result of the actions of PC Harwood.
As a result of the inquest verdict, the CPS reviewed the case and a decision was taken to prosecute Harwood for Manslaughter. There are two types of manslaughter and as a result a number of voluntary and involuntary manslaughter.
In brief, voluntary manslaughter occurs whereby someone has killed another but there are reasons for this such as a total loss of control, abnormality of the mind and suicide pact.
Involuntary manslaughter is where a person kills another but does so without the intention of killing or causing GBH. The offence of involuntary manslaughter is then broken down into two further types, specifically caused by gross negligence; or by an unlawful or dangerous act.
I assume that the CPS charged on the basis of involuntary manslaughter by way of an unlawful or dangerous act. In doing so the CPS would need to prove that the death of Tomlinson was as a result of Harwood’s unlawful act, that a sober and reasonable person would realise that the act would cause some physical harm whether or not the defendant realised it. The CPS need to prove all three elements to the jury and the jury need to be sure of the elements. Not, quite possibly or was maybe, but beyond reasonable doubt.
The fact that the jury did not find this does not mean that Tomlinson did not die as a result of Harwood’s actions. Simply that they cannot be certain that he did.
Much, has been made of the fact that Harwood had a number of allegations of use of excessive force made by members of the public. This may well be the case, but as far as I am aware they were only allegations. They were not substantiated claims. There may well be reasons to question why they were not investigated and why he was still a police officer. That said, the allegations were not put before the court. There are rules and procedures to put bad character before the court. Very often the CPS will apply to have a conviction put before the court to show a propensity to act in a particular way. Less often they will apply to have other evidence of what is called “reprehensible behaviour” as evidence of a persons bad character. This is far more difficult to prove and is often resisted by the defence, which leads to a trial within a trial as to other potentially criminal behaviour. Courts and Judges do not like it, as it clouds issues relating to the trial. If Harwood had convictions for violence I am sure they would have been put before the jury. The fact that he didn’t and there were only allegations means the court did not hear about them. In my opinion, rightly so. I do not like the issue of guilty or not guilty being decided on the basis of an allegation or what a defendant may or may not have done in the past.
The issues of previous allegations were not for the court in the trial. The fact that there were allegations that remained outstanding when Harwood re-applied to be a police officer is a matter that will need to be examined at a later date. It is a matter for the later IPCC to determine at the hearing later in the year. Whether Harwood was a fit and proper person to be a police officer was also not an issue that the jury was asked to consider, and rightly so. I respect the right of any person to have an opinion and to voice that opinion.
At the end of the day, a jury found Harwood not guilty of manslaughter. They could not be certain that his actions had resulted in the death of Tomlinson. The decision was clearly not liked but that was the decision of the court. If we are to have a system where we place our trust in twelve independent persons we must stand by that system when it gives us verdicts we like and verdicts we don’t. The decision of the jury today was that he was not guilty, how they reached that decision we will never know as they cannot talk about their deliberations. It is always a heavy burden to carry as a juror, the fate of an individual rests on their decision. The fact that two juries can hear what would appear to be very similar evidence and reach what appears to be differing verdicts is as much down I think to the effect their decision will have as to the evidence they are presented, and the questions that they were asked to decide.
Two final points I would like to make. Harwood may be and may have been a bad police officer and caused the death of another man. Whatever is said my view is that the police do a very difficult job in what can be very difficult circumstances. I am not anti or pro police, my job asks me to question what they put before me. However, the vast majority of police officers are not made in the same mould as him.
Finally and importantly; what happened to Ian Tomlinson was and remains a tragic loss of life. Apparently blameless of any of the madness and criminal behaviour around him on the day he was pushed, he later died. I have every genuine sympathy for his family and cannot for a moment begin to understand how they felt on that day, and on every single day thereafter. I truly hope that one day they have some closure and are able to move on from this. For what it is worth, I wish them well.