There will be a number of families and a number of police officers across the UK who have had a very difficult weekend of reflection – this has been a complicated and busy week in policing and mental health. Firstly, three West Midlands Police officers were cleared on Wednesday of perjury and perverting the course of justice in a criminal court trial which lasted a month, over six years after the death of Kingsley Burrell; then on Friday, six Metropolitan Police officers were cleared of gross misconduct in a disciplinary hearing chaired by an independent legal official and a non-Metropolitan Police chief officer; and finally on Friday afternoon, an inquest concluded in to the death of Joseph Phuong in south-west London after police officers used section 136 of the Mental Health Act and struggled to find any NHS building that would allow access for assessment of his condition. We’re still waiting on details to emerge on this last case and I’ll update once I know more.
Three men died in the care and control of the state: so the stakes could hardly be higher or the issues more sensitive. It’s important the consideration of what happened is serious and humble. But it’s obvious why there will be many people angry and confused this weekend, trying to take this all in because in all three cases, the trial, hearing or inquest that concluded was just one part of an overall process in the aftermath of a tragedy that has several parts. Some deaths in state custody see a lengthy investigation, a criminal trial, an inquest, a disciplinary hearing; and in recent years we’ve seen examples with ancillary and adjacent complaints and investigations associated with the conduct of the substantive process.
All of this stuff takes far too long to unfold: but that’s something on which everyone seems agreed – it’s a separate point and one for a different day.
Whenever there is a death in police custody or following contact, you are always going to see these multiple investigations and inquiries. They run from different perspectives and involve different ‘standards of proof’ which make understanding the multiple outcomes in a single case somewhat difficult and potentially confusing. For example, if there is a criminal inquiry or trial (as there was in the Kingsley Burrell case), the investigators and then any jury who hear the evidence are trying to decide whether the offences alleged can be proved beyond all reasonable doubt. Any inquest (as there was in all three cases mentioned above) are trying to determine who died, when, where and why – they attempt to reach their conclusions on the balance on probabilities, but if they are inclined to think that someone died by unlawful killing or suicide, they must be satisfied of this beyond all reasonable doubt. Where police officers face disciplinary charges, (as we saw today in the Seni Lewis case), the panel assembled to consider whether the officers breached the police conduct regulations are reaching their conclusion on the balance of probabilities.
But even that is not enough to fully explain: a criminal investigation is seeking to establish what happened and any trial to determine the guilt or innocence of the defendant’s charged, not the contributory roles of any professionals who were not charged, or the organisations that anyone worked for (unless there has been a corporate prosecution). A Coroner’s inquest is seeking to determine the questions above and it can consider the roles of any individuals or organisations considered relevant to determining those questions. A police disciplinary hearing is focussed on the officers who have been brought before it and whether they conducted themselves according to the standards established in police conduct regulations – it has no remit to look at outside factors. So we see these various legal theatres are constituted differently, working to different standards of proof and the background of the decision-makers varies. I’m really sympathetic to arguments these things don’t cohere very well overall and that incidents where people have lost their lives leave a situation where it seems no-one is being held accountable at all for the death of a vulnerable person.
It seems our legal system, taken as a whole, is guilty of cognitive dissonance: it is repeatedly found to produce conflicting findings where officers are cleared of disciplinary wrong doing despite a Coroner’s jury having found that the force used by the officers was ‘excessive and disproportionate’. Misconduct hearings and inquests work to the same standard of proof most of the time, so it doesn’t appear to make any sense, does it?! … and if officers have used disproportionate and excessive force according to an inquest jury, why will the Crown Prosecution Service not automatically charge officers with criminal offences and place them before a criminal jury to account for themselves?! These things are hard to reconcile no matter what angle you look at this from – families must wonder how misconduct hearings can find that officers “did nothing wrong” when inquest juries said they did; and officers vindicated in a hearing must wonder how the inquest jury could have found they went so badly awry. The best I can do, for what it’s worth and having followed this stuff for years, is to wonder whether it’s just that we have different human beings making these assessments? Just like two criminal trial juries can reach different decisions based on the same evidence; and just as two groups of police officers can make different decisions about the same professional matter – in many of these cases two different groups of people (often with different perspectives) have reached different views.
Discussion this week has involved people asking what I think of these various outcomes. In a sense, that’s impossible to answer because I haven’t sat through all of the evidence in any of these cases. And even if I had, it’s not for me to determine any of the outcomes and whether the conclusion was ‘right’ or ‘wrong’. It is what it is and we all have to work out how to get better from here, amidst the confusion, the contradiction and the complexity. My slightly wider concern is something else: I’ve spent the week watching reactions to these cases and my heart goes out again to the families involved – how could it not? But I admit to wondering whether we’ve forgotten that in none of these cases were the police acting in isolation. I admit to wondering why we’re not talking any more about the role of our NHS in these cases? The officers in each incident and many more besides were working in environments where NHS staff also made bad mistakes which contributed the position and the context where they took the decisions they did. Wider NHS policies and practices were far from irrelevant as they have been in other cases over the years.
To use a different example: the death of Sean Rigg in south London in 2010:
This is primarily and correctly cited as one of the most high-profile and contentious deaths in police custody we’ve seen in the United Kingdom. This was another case where Sean’s family have been through all the frustration of multiple investigations, inquiries and inquests. But I can’t remember how long it’s been since I heard the public narrative around his case remember the jury’s finding that NHS neglect contributed to his death, as well as police actions following that neglect. << This is not an argument that one aspect is more important than the other; OR an argument that the police don’t need to look at themselves because things should not be reaching us in the first place. As I have repeatedly said over the years: not everything is predictable and preventable, so we need to know what we’re doing. But some things are preventable; and that’s not irrelevant, unimportant or something to ignore. We could have more than one problem here.
My point is this: if we think that asking the police to address the problems they have and which contribute to our society’s reaction to those of us who are in acute distress because of mental ill-health, we’re missing at least half of the point. Report after report which has been commissioned to look at policing has found this, by ending up saying more about our health and social care systems than it had to say about the police. This was what Lord Adebowale found in 2013 when he was commissioned by the Metropolitan Police commissioner to review 55 incidents of death and serious injury in London – 28 recommendations, 9 of them about policing. We are awaiting publication of the Angiolini Report later in the year. Leaks to the media of this report – commissioned by the last Home Secretary to look at policing and the post-policing processes – seems to have plenty of things to say about our healthcare system even though it wasn’t commissioned by the Department of Health or focussed on concerns about healthcare provision. It turns out: it’s just an unavoidable part of any debate about a policing response to a healthcare crisis. And it couldn’t possibly be otherwise!
FORK IN THE ROAD
In case of any there being any doubt whatsoever here: I’m not saying the police are perfect and having nothing to learn and no way to improve. I absolutely think there is still plenty that we need to do which is just about us and nothing to do with other professionals, other organisations. In particular, we would do well to start listening more to the public we are actually here to serve – we need to be more aware of our impact upon vulnerable people, both before during and after we’ve even thought about restraint. Where we find we can’t avoid restrictive practices, we need to be more aware of its risk and our responsibilities. But what I am doing here is what Lord Adebowale has done and what I’m guessing Dame Elish will do: push back at the overly-simplistic notion that this is just about policing and police officers. In a final example of an tragic incident where the NHS were operationally uninvolved, we still see reasons to think we need to look more widely than policing:
Thomas Orchard’s family are in the middle of all of this – there has been a criminal investigation in to Devon and Cornwall Police officers which led to two different criminal trials. In one, the judge abandoned the trial for reasons I’m not aware of and in the re-trial that followed, all three defendants were cleared. Still to come will be an inquest and potentially, misconduct proceedings against seven officers which the IPCC have indicated are required. In thinking about how better we might handle an incident of this kind we could wonder whether the officers should have recognised Thomas was experiencing a mental health crisis and detained him instead under s136 of the Mental health Act before removing him to hospital. Read paragraph 6.5 of the (current!) Devon Partnership NHS Trust policy on the use of s136 in the Exeter area and tell me whether you agree a man who had been restrained in handcuffs and leg restraints was likely to be granted access? Read the comment of a former Exeter police officer on a previous post to see what they thought of that idea. It may be that detention under s136 may have made no different to where Thomas was taken.
It is possible that we have more than one problem at the same time – and that they are inextricably inter-connected: our police forces are not perfect – they need more training and greater awareness, etc., etc.,; but we do continue to see problems in our healthcare system and these two systems don’t integrate and collaborate as fully as we need them to. In each of the three cases which have part-concluded this week, there were problems with our healthcare system that are now relatively unmentioned; and I suspect many of them continue to exist in many areas. Police officers are still at risk of being drawn in to things they shouldn’t go near or which desperately need NHS support for vulnerable people they’ve encountered where they’ve happened. If we only want to talk about policing and police accountability, we are missing an opportunity and often ignoring the overall outcome from these disparate and dissonant proceedings.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk