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‘The Untouchables, the Dead and Albert Venn Dicey’s Ghost’ (4 June 2014)

Date: 04/06/2014
Duncan Lewis, Public Law Solicitors, ‘The Untouchables, the Dead and Albert Venn Dicey’s Ghost’

‘The Untouchables, the Dead and Albert Venn Dicey’s Ghost’
By Duncan Lewis Daniela Tringale was published in the Haldane Society Magazine in March 2014. Daniela discusses the House of Commons Home Affairs Committee Report on the Independent Police Complaints Commission (IPCC) and on the killing of Mark Duggan and Christopher Alden.


The House of Commons Home Affairs Committee has very recently published a Report[1] on the Independent Police Complaints Commission (IPCC) which was set up in 2004 to replace ‘the discredited Police Complaints Authority.’[2] The IPCC was established with the intention to secure and maintain public confidence in the police complaints procedure. The Report says the IPCC is not capable of ‘delivering that kind of powerful, objective scrutiny that is needed to inspire the public with the confidence that when ‘police officers, in exercising their warranted powers that can strip people of their liberty, their money and their lives,’[3] are held accountable. Deborah Coles, co-director of Inquest (an organisation working for truth, justice and accountability) says: ‘the IPCC systematically fails to hold the police to account for wrongdoings.’ [4] An opinion of the Independent newspaper is that the police have ‘undue influence within the IPCC.’[5] ‘About 11% of the staff and 33% of IPCC investigators are former police officers.’[6] ‘Nick Harwick, former Chair of the IPCC, claimed that in the case of Jean Charles de Menezes the then Commissioner of the Metropolitan police had sought to intervene to prevent the Stockwell investigation from taking place.’[7] The Untouchables.

The IPCC was set up to redress cases such as the death of Christopher Alder, a 37 year old black man who ‘choked to death while police officers watched, chatted and joked at Hull Police Station in 1998.’[8] Father-of-two Christopher was assaulted in a night club while enjoying a night out. He was hit on the head, taken to hospital and was arrested when his behaviour deteriorated. ‘After a five-minute journey in a police van, he emerged unconscious with his trousers to his knees.’ [9] ‘He was dragged from the van to the custody suite. He lay on the custody suite floor watched by [four police officers]. They all claimed they believed he was faking his condition. ‘Mr Alder…stopped breathing at about 03.57.’[10] ‘In 2000 an inquest delivered an unlawful killing verdict, with the jury concluding that Mr Alder might have survived with police assistance.’[11] The police officers did not face any disciplinary proceeding nor a charge for gross negligence manslaughter. Liberty, an association protecting civil liberties and promoting human rights, acted on behalf of Christopher’s sister Janet who took the case to the European Court of Human Rights. The Court found that there had been a lack of effective investigation into Mr Alder’s death in violation of Art. 2, Art. 3 and Art. 14 of the Convention.[12] Janet Alder accepted a friendly settlement and compensation of €26,500. For this reason, the Court considered it was no longer justified to continue the examination of the case and, under Art. 37 para 1(c) of the Convention, decided to strike it out of its list of cases.

A more recent example is the case of Mark Duggan. Mr Duggan, a 29 year-old man, was shot dead two years ago by one of the officers of the Specialist Firearms Command (CO19) who, in conjunction with officers from Trident, made the so-called ‘hard-stop’ of a mini cab in Tottenham, North East London on 4th August 2011, where Mark was travelling. Mr Duggan was under investigation by the ‘Operation Trident’, a subdivision of the Metropolitan Police, set up in 1998 to target gun crime in London with special attention to the sale of drugs and crime in the Afro-Caribbean communities. The IPCC, called in to investigate, held that Mark Duggan shot first. This statement was shortly found to be untrue and the IPCC was then forced to apologise. The 11 police officers present at the killing were put altogether in a room to write a statement of what happened. It took them eight hours to do so. No member of the IPCC was present, because there were ‘no resources available’ said the IPCC’s lead investigator Mr Sparrow when examined at the Hutchinson-Foster trial, the man who allegedly sold or transferred the BBM Bruni model 92 gun to Duggan. During the trial, the officer who shot dead Mr Duggan said the new deceased came out of the minicab with a gun and raised as if to fire. But the officer who first reached Mark Duggan as he fell to the ground said he did not find a gun under his body. It was only later and then when he gave his statement in court (sic) did he mention that Mr Duggan was not holding a gun. It is still unclear whether the handgun, eventually found 12 feet way from Mark Duggan’s body, had actually fired. It seems not. An expert witness told the court that the gun could not have landed there if Mr Duggan, when shot, was pointing it at the police. By the end of the week after his killing, Mark Duggan was framed by the Daily Telegraph, the Sun and among others, the Daily Mail, as a gangster and a crack dealer. The Institute of Race Relations, an independent education charity established in 1958 which investigates, inter alia, police racism and death in custody says it is common practice ‘in examining deaths that have occurred over the years involving members of the African-Caribbean community in particular…to place information in the public domain, citing unnamed police sources which…tends to frame the deceased as a violent and dangerous man.’[13] On January 7th 2014, the jury at the inquest into the death of Mr Duggan delivered a verdict. 'They concluded, by a majority of eight to two, on the civil standard of balance of probability, that Duggan was lawfully killed by the police,'[14] even if he did not held a the gun in his hand when it was shot. Forensic evidence showed that his fingerprints and DNA were not on the gun or sock it was in. ‘Another common summary killing’ says Mr Dicey’s ghost.

The reasons for the IPCC’s failure to be a trustworthy independent body to which people can refer to make a ‘complaint about the police, make sure that the truth will be told and any wrongs put right’[15] especially in most serious cases such as those involving death in custody or police corruption have been referred to in the Report.[16]

Firstly, ‘serious questions… [are]…raised about the capacity of the Commission to conduct a proper investigation into the circumstances surrounding the cases referred to it,’[17] as long as the IPCC does not have a panel of independent experts to analyse a crime scene but relies on police investigators. The Commission activities are mostly funded through Grant-In-Aid from the Home Office and, like all public bodies, its funding has been reduced in ‘excess of 21% over the Comprehensive Spending Review period.’[18] While an independent investigation would cost the IPCC a sum varying from £45,000 to £300,000, the majority of costs of an investigation done using police resources will fall to the relevant police force making that investigation. The Report suggests that ‘in the most serious cases…there should be a system for transfer of funds from [the relevant police force] to the IPCC to cover an investigation.’[19]

Secondly, the Report suggests IPCC’s lack of application of ‘non-discriminatory practises is crucial as a disproportionate number of the cases that causes the most serious public concern involve the black and minority ethnic (BME) communities, [and suggests] all Commissioners, investigators and caseworkers should be trained in discrimination awareness and relevant law, including all the protected characteristics under the Equality Act 2010.’[20]

Thirdly, the IPCC’s limited investigation resources does not allow the Commission to ‘investigate cases of serious corruption [in the police force] – particularly those involving senior officers, serious criminal allegation and gross abuse of power.’[21] In particular, between 2008-2011 only 122 of the 837 ‘corruption-related referrals…were conducted under the direction and control of the IPCC [and some of those were handled] either as an independent or managed investigation.’[22] The Report suggested that rich ways to redirect Commission resources to better use are ‘mediation and restorative justice…for improving the handling of police complaints. The Commission should set out best practice protocols for their use in appropriate cases and the use of informal or local resolution systems should be independently monitored to ensure that it is not used inappropriately in relation to conduct that would justify criminal or disciplinary proceedings.’[23]

Lastly, ‘the basic failing in the system, [is] that there is no requirement for forces to respond to recommendations from the IPCC, still less to implement them.’[24] The Home Affairs Committee recommends that ‘the Commission be given a statutory power to require a force to respond to its findings. In most serious cases, the Commission should instigate a ‘year on review’ to ensure that its recommendations have been properly carried out. Any failure to do so would result in an investigation by Her Majesty’s Inspectorate Constabulary (HMIC) and the local Police and Crime Commissioner, as a professional conduct matter relating to the Chief Constable.’[25]

The Police Action Lawyers Group, a national organisation to represent complainants against the police in England and Wales says that the IPCC believes that ‘since officers have power to use force that are not available to ordinary citizens, they should be treated differently from ordinary suspects in investigation into death.’[26] For this reasons police officer are rarely interviewed under caution in the course of IPCC investigation. ‘This single issue has caused immense damage, firstly because it shows a lack of impartiality on behalf of the investigation, secondly because only evidence obtained in an ‘interview under caution…is admissible in any subsequent legal proceedings.’[27]

To conclude, the Report claims the number of fatalities in 2011-2012 involving the police are alarming: ‘…18 road traffic fatalities; 2 fatal police shootings; 15 deaths in custody; 47 other deaths following police contact; and 39 apparent suicides following police custody. ‘Since 1990, inquests into death in police custody have resulted in 9 unlawful killing verdicts, none of which has yet resulted in a conviction.’[28] ‘In 2011, 38% of those who died in police custody were from black or minority ethnic communities. Black people account for 2.9% of the population yet 20% of those who die in custody. Over 33% of cases in which a black detainee has died occurred in circumstances in which the police actions may have been a factor, compared with only 4% of cases where the detainee was white.[29] The Dead.

About the Author

Daniela joined Duncan Lewis in May 2014. She is currently a Caseworker in the firm’s Immigration and Public Law department based in Harrow. It is in this department that Daniela’s multi-linguism played an important role in the preparation of objective evidence in a test case in the area of Asylum and Refugee law under the Regulation (EU) No 604/2013 (Dublin Regulation III). The work Daniela carries out on a day to day basis involves very strict deadlines, therefore requiring her to be organised and work well under pressure.

Notes

[1] House of Commons Home Affairs Committee ‘Independent Police Complaints Commission’ Eleventh Report of Session 2012-13, 1st February 2013, The Stationery Office Limited.
[2] http://www.independent.co.uk/voices/comment/can-we-really-trust-the-ipcc-to-get-to-the-truth-this-time-8209807.html
[3] House of Commons Home Affairs Committee ‘Independent Police Complaints Commission’ Eleventh Report of Session 2012-13, 1st February 2013, The Stationery Office Limited, at para 4.
[4] At: http://www.inquest.org.uk/
[5] http://www.independent.co.uk/voices/comment/can-we-really-trust-the-ipcc-to-get-to-the-truth-this-time-8209807.html
[6] House of Commons Home Affairs Committee ‘Independent Police Complaints Commission’ Eleventh Report of Session 2012-13, 1st February 2013, The Stationery Office Limited, at p. 3.
[7] House of Commons Home Affairs Committee ‘Independent Police Complaints Commission’ Eleventh Report of Session 2012-13, 1st February 2013, The Stationery Office Limited, at para 72.
[8] At: http://www.liberty-human-rights.org.uk/news/2013/my-hra-janet-alder.php.
[9] At: http://www.liberty-human-rights.org.uk/news/2013/my-hra-janet-alder.php.
[10] IPCC, ‘Report, dated 27th February 2006, of the Review into the event leading up to and following the death of Christopher Alder on 1st April 1998’ 27th March 2006, The Stationary Office, p. 15.
[11] http://www.liberty-human-rights.org.uk/news/2013/my-hra-janet-alder.php
[12] See Alder v United Kingdom, Application No 42078/02, 22 November 2011, at: http://sim.law.uu.nl/sim/caselaw/Hof.nsf/1d4d0dd240bfee7ec12568490035df05/8894ac0ba510b66dc125794b003674cc?OpenDocument
[13] H. Athwal, ‘The spotlight is back on black deaths at the hands of the police.’ At: http://www.irr.org.uk/news/the-spotlight-is-back-on-black-deaths-at-the-hands-of-police/
[14] M. Prodger, 'Mark Duggan Inquest: Why Killing was deemed lawful.' At:
http://www.bbc.co.uk/news/uk-england-london-25321711

[15] House of Commons Home Affairs Committee ‘Independent Police Complaints Commission’ Eleventh Report of Session 2012-13, 1st February 2013, The Stationery Office Limited, at para 1.
[16] House of Commons Home Affairs Committee ‘Independent Police Complaints Commission’ Eleventh Report of Session 2012-13, 1st February 2013, The Stationery Office Limited.
[17] Ibid at para 20.
[18] Ibid at para 29.
[19] Ibid at para 33.
[20] Ibid at para 35.
[21] Independent Police Complaints Commission, ‘Corruption in the police service in England and Wales: Second report – a report bases on the IPCC’s experience from 2008 to 2011’ May 2012, The Stationery Office Limited, p. 5.
[22] Ibid p 35.
[23] House of Commons Home Affairs Committee ‘Independent Police Complaints Commission’ Eleventh Report of Session 2012-13, 1st February 2013, The Stationery Office Limited, at para 49.
[24] Ibid at para 69.
[25]Ibid.
[26] Police Action Lawyers Group, ‘Submission to the Independent Police Complaints Commission regarding its work in cases involving death’ p. 6. At: http://www.palg.org.uk/documents/
[27] House of Commons Home Affairs Committee ‘Independent Police Complaints Commission’ Eleventh Report of Session 2012-13, 1st February 2013, The Stationery Office Limited, at para 82.
[28] House of Commons Home Affairs Committee ‘Independent Police Complaints Commission’ Eleventh Report of Session 2012-13, 1st February 2013, The Stationery Office Limited, p. 3.
[29] House of Commons Home Affairs Committee ‘Independent Police Complaints Commission’ Eleventh Report of Session 2012-13, 1st February 2013, The Stationery Office Limited, at para 34.



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