The news reports of protests in Ferguson, Missouri following the fatal shooting by police of unarmed black teenager, Michael Brown and the “I can’t breathe” campaign, arising from the death of Eric Garner, who died after being put in a chokehold by police, has again shone a spotlight on the use of force by the police. In each case, the officers involved escaped prosecution.
Similarly, high profile cases in the UK like the deaths of Sean Rigg, Jimmy Mubenga and Mark Duggan have raised criticisms of the police and other detaining authorities. To put it into context, during the last 25 years, over 1,500 people have died in the UK while in custody, but not one police officer has been successfully prosecuted for any of those deaths.
Unlike America, investigations into allegations that a death has been caused by the police are undertaken by the Independent Police Complaints Commission (IPCC) and then prosecuted by the Crown Prosecution Service (CPS). It is a system that is supposed to make sure that when there is a death and police officers could be criminally responsible, there is an independent and rigorous approach to the investigation, and potential victims of the police will receive the same treatment as any other victims. However, both the IPCC and the CPS have been seriously criticised in the past, and two recent cases illustrate some of the problems with the way in which prosecutions of the police take place.
In the most recent case, a prosecution has been dropped by the CPS in the case against Chief Constable of Greater Manchester Police. The case related to the shooting of Anthony Grainger by a police marksman in March 2012.
In January 2014, the CPS decided that the police officer who shot Anthony should not face prosecution, and instead the Chief Constable should face prosecution under the Health and Safety Act. However, the Chief Constable, Sir Peter Fahy, subsequently argued that some of the evidence which he needed to support his case could not be heard in open court because it was too sensitive.
According to media reports, after a judge accepted this argument and held that the material had to be disclosed if there was to be a fair trial, the CPS consulted with ‘relevant parties’ and decided not to continue with the prosecution. The solicitor representing the family of Mr Grainger expressed their concern with the decision and the possible implications for future cases involving secret evidence.
Just before Christmas last year, the Court of Appeal reached a decision in relation to the other part of the system responsible for investigating the police; the IPCC (in the case of R (Delezuch) v. Chief Constable of Leicestershire Constabulary and others, and R (Duggan) v. ACPO and others  EWCA Civ 1635). Following the deaths of Rafal Delezuch, who died following restraint by the police, and Mark Duggan, who was shot by the police, concerns were raised that the IPCC had failed to properly investigate their deaths.
The IPCC guidance at the time did not require that the officers who used or witnessed force were immediately separated, and so there could be a risk of deliberate collusion or innocent contamination of evidence if officers could confer before they made statements.
The families of both Rafal and Mark brought cases arguing that the guidance meant that an investigation could not be independent and effective as required by Article 2 of the European Convention of Human Rights (ECHR). The response from the defendant police forces included claims that to separate officers would be intrusive and stigmatising, that it was impractical, and that eventually body cameras fitted to officers might remove concerns about collusion.
Importantly, guidance on how to carry out such an investigation was provided by the Association of Chief Police Officers (and then the College of Policing, who produced new guidance in 2014), which states that, as a matter of routine, officers should not be separated. This guidance is not binding on police forces, but many follow it.
The IPCC has the power to make binding guidance in this area, and has produced draft guidance but has not yet produced a final version. The draft includes a direction that key witnesses should be separated as soon as it is operationally safe to do so.
However, according to the court, the fact that the earlier guidance did not require officers to be separated did not mean it was necessarily in breach of Article 2 of the ECHR. The court held that there were safeguards in the guidance to prevent collusion even if officers were not separated, and that separation of officers would have to be considered in the context of operational safety and the practicality of separating them. While the court held that the guidance from ACPO/the College of Policing left open a greater risk of collusion than the IPCC draft guidance, it was a relatively low risk.
However, the court did state that two areas were of greater concern: the first was the gap between an initial and a more detailed statement, and the court made it clear that a key way to avoid the risk of collusion was for a detailed statement to be taken as early as possible.
The court’s other concern was that there was a risk of collusion whilst at the scene and travelling back to the station before giving a statement. The court said that for reasons of practicality, there were reasons to suggest it would be difficult to separate officers in most cases, but this suggests that separation should be considered before arrival at the station.
The situation may change if and when any IPCC guidance is implemented, although it remains to be seen whether the requirement to separate officers as soon as it is operationally safe to do so in the draft guidance will remain (and criticisms can be made of the potential discretion that this approach will still leave).
What all this makes clear is that the current system in the UK remains open to the charge of differential treatment when it comes to deaths involving the police: the investigation carried out is much less likely to get all the way to a successful prosecution, and has a much greater risk that it leaves open possibilities of innocent contamination of evidence – or much more worryingly – deliberate and unlawful collusion.
To maintain public pressure and keep the media focus on the question of deaths in custody and at the hands of state agents, Reverend Sekou, a key member of the protests in Ferguson and an academic at Stanford University’s Martin Luther King Institute is coming to the UK as part of a week-long Ferguson Solidarity Tour organized by various community groups.
The tour will use the hashtag #blacklivesmatter and includes various events, including a People’s Parliament event on 26 January, with contributions from Rev. Sekou, Deborah Coles from INQUEST, Jimmy Mubenga’s widow Adrienne Makenda Kambana and other family members of individuals who have died in police custody, as well as Diane Abbott MP and John McDonnell MP.