I will now direct you as to the law:
The Officer is charged under the following statute
Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable . . . to [imprisonment for five years].
This is known as ABH and it requires the unlawful touching of a person which interferes with the health or comfort of the [victim]' (R v Miller [1954] 2 QB 282, Lynskey J @ 292).
It is an either way offence, and therefore unlike common assault, can be prosecuted at any time in either the Magistrates' Court or the Crown Court (subject to any delay becoming an abuse of the process, but that does not arise in this case because of the legitimate public interest in a prosecution in this very serious case).
This case has not been heard in the Magistrates' Court because of the seriousness of the allegation that a Police Officer assaulted a member of the public without cause.
Members of the Jury, the Crown Prosecution Service does not encourage, in its national charging guidelines, that this charge is brought where there are no serious injuries which require treatment (and as the cause of death is disputed, there were no immediate serious injuries, which can be said with certainty to have been caused by the initial assault) and the CPS might have brought a charge of common assault, which does not require any proof of actual bodily harm, but they have quite properly brought an ABH charge in this case, contrary to their own guidelines, because the delay in them and the IPCC considering this case, has caused a lesser charge of common assault to be unavailable. I commend the DPP in breaching his own guidelines in the public interest and in the interests of justice.
The Crown also considered manslaughter but properly concluded that they could not prosecute because of a dispute over the medical cause of death.
So members of the jury, you have seen the video and you have been directed as to the law...would you like to retire to consider your verdict..............
It's not just CPS guidelines that require there to have been an injury caused by the assault, it's the law. (The clue is in the words "...occasioning actual bodily harm.") So in the absence of evidence that the assault caused the death, or any other injury, they could not hope to get a conviction for ABH, and a judge would throw the case out.
ReplyDeleteHowever, juries often have to consider conflicting expert evidence in criminal trials, and out of the three pathologists who gave an opinion about the cause of death, the one who said it was natural causes has been accused of incompetence in relation to a number of other post mortems he carried out and as a result has been barred from investigating any more suspicious deaths, whereas the two who say the police killed him have, so far as I know, never been criticised. I would have thought that would be enough to eliminate reasonable doubt in a manslaughter case.
Richard75
The two that said it was internal bleeding were basing their findings on a note written by the first. The note read something like fluid 3l blood, That pathologist stated that the note should have read fluid 3l with blood. When the second and third examinations were carried out there was no fluid because it hadn't been kept by the first as he thought it irrelevant.
ReplyDeleteThe Second pathologist has stated that there was extensive bruising from the baton strike and that the CPS had downplayed the injury.
ReplyDeleteJoseph K.
It seems that there are questions that should be weighed. The right people to do that are a jury. The charge could be ABH, or it could be manslaughter. It appears enough evidence exists at least to consider each.
ReplyDeleteIf not then the very fact that the CPS and the IPCC delayed proceedings sufficiently that a charge of common assault cannot now proceed seems like negligence to me. They were, presumably well aware of the deadline for that charge. They should have made an active decision whether to proceed or not well before time ran out.
If a police officer had been killed by a member of the public, I suspect we would be hearing a very different story at the moment.
This would, I think, have been a sane approach. But it does contain one logical flaw which, so far as I can tell also occurs in the DPP's statement.
ReplyDelete"as the cause of death is disputed, there were no immediate serious injuries, which can be said with certainty to have been caused by the initial assault"
That doesn't follow. The dispute as to the cause of death says nothing at all about whether there might have been some non-trivial injury (and non-trivial rather than serious should be the test here as it is ABH and not GBH).
In addition to the bruising that we know about, there might have been (and there may be witness evidence for) something like concussion or other phsychological effects that would count as ABH but are not the sorts of things that show up in a post mortem.
And the dispute over the cause of death by no means rules out that the death or injuries leading to it might be found to have been caused by the assault by a jury. All sorts of disputed things are found as fact by the courts and by juries - that is what they are for.
For example, if one of the postmortems was erroneous, or was misinformed or lacked some essential information, or was misdirected into ONLY looking for a cause of death and not for any other injury it might quite properly be discounted by a jury.
Not having a go at you here, good sir, but at the weaselly logic that appears to underpin the DPP's argument.
That's provided that you prove that the push was unlawful in the first place.
ReplyDeleteIs that not a question for the jury?
ReplyDeleteYes of course. But if it is the CPS' learned assessment that there is a point necessary to prove which cannot be satisfactorily proven by the evidence at hand, surely it's their job not to place it before the jury in the first place. It would be nice to get the opinions of some defence QCs or judges on the likelihood of the case being thrown out should it get to court.
ReplyDeleteI really can't see how you could get a good nick on this one
ReplyDeleteThe CPS would (apparently) have prosecuted S39 common assault had it been within 6 months. Ergo they were confident of proving the unlawful assault element, and ABH merely requires the same mens rea as for common assault.
ReplyDeleteTrue, but their charging standards require more serious injuries.
ReplyDeleteThird paragraph from bottom: it appears that prosecuting counsel aim for long sentences whenever the opportunities arise. With respect, the first sentence is so long, it is nearly a nonsense. Poor old juries!
ReplyDelete