Home AffairsSupplementary written evidence submitted by the Crown Prosecution Service [IPCC 28a]

Letter from Keir Starmer QC, Director of Public Prosecutions, to the Chair of the Committee, 3 December 2012

When I appeared before the Home Affairs Select Committee on 13 November, I promised to write to you to set out the difficulties in prosecuting cases relating to those who die in custody.

When I refer to “deaths in custody” I am using a broad definition of these types of cases. I include not only those where a person is under arrest in a cell but also deaths resulting from police shootings and deaths where there has been some interaction between the police and the deceased. Nevertheless I consider that these cases can be broken down into three broad categories police shootings, restraint cases and cases where the responsible person fails to act—and I will deal with each of them in turn.

Police Shootings

In these cases my prosecutors would be considering charges of murder or manslaughter.

Police officers who stop persons they believe to be armed and dangerous and who shoot them will argue that they acted in reasonable self-defence or in the defence of others. It is for the prosecution to disprove this, not for the suspect to prove it.

By section 3 of the Criminal Law Act 1967 “A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large”. Section 3 reflects the common law rule that a person is entitled to use such force as is reasonably necessary to protect himself or another or property.

By section 76 of the Criminal Justice and Immigration Act 2008, where in proceedings for an offence an issue arises as to whether a defendant is entitled to rely on the common law defence of self-defence or section 3, the question of the degree of force used by the defendant was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be.

By sub-section 4, “If D [the defendant] claims to have held a particular belief ... (a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but (b) if it is determined that D did genuinely hold it, D is entitled to rely on it ... whether or not (i) it was mistaken, or (ii) (if it was mistaken) the mistake was a reasonable one to have made.”

For example, where a police officer is faced with a person pointing an unloaded gun at him, if he genuinely believes that the gun is loaded, however unreasonably, and shoots to kill, he is entitled to rely on the argument that his use of force was reasonable in the circumstances and for the purpose of legitimate self-defence. It is then for the prosecution to prove that the force used was disproportionate to the perceived threat or that the mistake was so unreasonable as to prove that in fact the officer did not genuinely hold the belief he claimed to hold.

The 2008 Act also gives statutory force to the judicial maxims that a person cannot “weigh to a nicety” the exact measure of any necessary action and that evidence of a person’s having only done what he honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose. This means that, for example, a police officer faced with a spilt-second decision on whether to shoot or not and acting as he instinctively thinks necessary is able to make a strong argument that he only took reasonable defensive action, which will be very difficult for the prosecution to rebut.

Restraint Cases

In these cases my prosecutors would be considering charges of either unlawful act or gross negligence manslaughter.

The law is that an accused is guilty of unlawful act manslaughter if it is proved that he intentionally did an act (not an omission) which was unlawful and dangerous and that that act had caused death. It is not necessary to prove that he intended to kill. It is also not necessary to prove that he knew the act was unlawful and dangerous as the test is whether all sober and responsible people would recognise that the act was dangerous, not whether he did so.

Most restraints would appear dangerous to a lay observer so the question is principally one of lawfulness.

On ordinary principles of joint enterprise, if a group of police officers set out with the intention of inflicting a beating on a detainee they would all be liable for the assault, whoever threw any particular punch. However, if they set out on a lawful restraint but one police officer committed an unlawful act, the others would only be liable for that if they gave intentional encouragement or assistance to the act.

For the offence of gross negligence manslaughter it is necessary to prove that the officers individually, not as a group, breached their duty of care to the detainee, that the breach of the duty of care caused the death and that the officer’s individual conduct was so truly exceptionally bad as to amount to a crime against the State deserving of punishment. Minor acts of negligence by a series of officers in, for example, a custody suite cannot be aggregated into one act of gross negligence by all of them.

Failures to Act

Here again my prosecutors will be considering gross negligence manslaughter and the points above remain true.

Where a custody sergeant or prison officer is appointed to have charge, or takes charge, of a prisoner they will have a duty of care towards him. Not every officer in an establishment will have a duty of care towards all prisoners.

Where there is a failure to act it is necessary to show that, if the officer with a duty of care had acted correctly, for example by sending an ill prisoner to hospital when first alerted to his illness, the prisoner would have survived. It is insufficient to show that he might have survived. In cases where the prisoner is suffering from serious but undiagnosed illness, this can be a difficult barrier to overcome.

Lastly, the committee also requested case figures relating to ACPO ranks. They are attached at Annex A.

Keir Starmer QC
Director of Public Prosecution
Crown Prosecution Service

December 2012

Annex A

Cases Involving ACPO Ranks Referred to CPS Special Crime & Counter Terrorism Division by the IPCC

Caseload of ongoing IPCC cases (pre or post charge) with numbers of Chief Constable and Deputy or Assistant Chief Constables as subjects:

“No. of cases” is as at 13.11.12:

Case type

No. cases

CC subjects

DCC/ACC subjects

Death in custody/contact/non lethal tazer use

13

0

0

Assaults

5

0

0

Perjury

3

0

0

Failure to investigate/falsifying records

1

0

0

Dangerous driving

2

0

0

Sexual misconduct

2

0

0

Racism

1

0

0

Data misconduct

1

0

0

Hillsborough

1

1 (resigned)

0

Irregularities in disclosure in criminal trial

1

1

3

Fraud

1

1 (dismissed)

0

Abuse of power—misconduct in public office

1

0

1 (dismissed)

Prepared 31st January 2013