Possible charges
The first issue that the CPS considered was whether the actions of PC 'A' were lawful. Having analysed the available evidence very carefully, the CPS concluded that there is sufficient evidence to provide a realistic prospect of proving that the actions of PC 'A' in striking Mr Tomlinson with his baton and then pushing him over constituted an assault. At the time of those acts, Mr Tomlinson did not pose a threat to PC 'A' or any other police officer. Whilst the officer was entitled to require Mr Tomlinson to move out of Royal Exchange, there is sufficient evidence to provide a realistic prospect of proving that his actions were disproportionate and unjustified.
Having concluded that the officer's actions could constitute an assault, the CPS then considered the possible criminal charges.
Unlawful act manslaughter
Unlawful act manslaughter was the most serious charge considered. This is where a killing is the result of the defendant's unlawful and dangerous act where the unlawful act is one which all sober and reasonable people would realise would subject the victim to the risk of some physical harm, even though it might not cause serious harm.
In order to proceed with this charge, the CPS would have to prove a causal link between the alleged assault on Mr Tomlinson and his death.
On that issue, the medical experts were and remain fundamentally divided. Dr Patel's opinion is that Mr Tomlinson's death was "consistent with natural causes" and that the cause of death was "coronary artery disease". The opinion of Dr Cary and Dr Shorrock is that Mr Tomlinson's death was the result of abdominal haemorrhage (internal bleeding) caused by blunt force trauma to the abdomen.
A conflict between medical experts inevitably makes a prosecution very difficult, but the CPS proceeded on the basis that such a conflict need not automatically mean that a prosecution must fail. For that reason, we explored at some length the possibility of proceeding without relying on the evidence of Dr Patel. However, we were ultimately driven to conclude that, as the sole medical expert who conducted the first post mortem, Dr Patel would have to be called at trial as a prosecution witness as to the primary facts. His evidence would be that there was no internal rupture and that the fluid consisted of blood-stained ascites and not blood alone. Even leaving out of account the stark disagreement between him and the other experts as to the cause of death, the CPS concluded that the evidence of those primary facts undermined the basis upon which the other experts reached their conclusions about the cause of death. As a result, the CPS would simply not be able to prove beyond reasonable doubt that there was a causal link between Mr Tomlinson's death and the alleged assault upon him.
That being the case, there is no realistic prospect of a conviction for unlawful act manslaughter.
Assault
Two types of assault charge were considered: assault occasioning actual bodily harm and common assault.
Assault occasioning actual bodily harm would require the prosecution to prove that the alleged assault on Mr Tomlinson caused him actual bodily harm. So far as the push on Mr Tomlinson is concerned, the conflict in the medical evidence prevents this. If the push caused Mr Tomlinson's death, the appropriate charge would be manslaughter, not assault occasioning actual bodily harm. If, as we have concluded, the prosecution cannot prove a causal link between the push and Mr Tomlinson's death because of the conflict in the medical evidence, it follows that actual bodily harm cannot be proved either.
The separate strike with the baton was also considered. It had left patterned bruising. But where injuries are relatively minor, as these were, the appropriate charge is common assault in accordance with the CPS Charging Standard, which is applied nationally. This Charging Standard was applied in another incident arising from the G20 where a police officer had struck the complainant twice with his baton.
Common assault does not require proof of injury, but it is subject to a strict six month time limit. That placed the CPS in a very difficult position because enquiries were continuing at the six month point and it would not have been possible to have brought any charge at that stage.
Misconduct in public office
The CPS also considered the offence of misconduct in public office. The offence is committed when a public officer acting as such wilfully neglects to perform his duty and/or wilfully misconducts himself to such a degree as to amount to an abuse of the public's trust in the office holder without reasonable excuse or justification. The offence is, in essence, one of abuse of the power or responsibilities of the office held.
The offence of misconduct in public office cannot simply be used as a substitute for other offences and simply being a police officer who commits a criminal offence, even one of assault, does not, without some other aggravating factor, automatically amount to the offence of misconduct in public office. Mr Tomlinson's death would be an aggravating feature, but for the reasons already stated, the prosecution cannot prove a causal link between the alleged assault and the death to the criminal standard. The Court of Appeal has held that: "The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public's trust in the office holder." In addition: "It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence." The 'likely' consequences of pushing a person to the floor is that they may sustain some bruising. But, in this case, on the analysis of the medical evidence set out above, the CPS would not be able to prove beyond reasonable doubt that Mr Tomlinson's fall had caused him any injury.
As a result, we have concluded that the conduct of PC 'A' did not meet the high threshold required to constitute the offence of misconduct in public office.
In reaching a decision about misconduct in public office, the CPS also took into account the fact that the Court of Appeal has indicated that it would be wrong to charge misconduct in public office as an alternative to a charge of manslaughter in circumstances where the prosecution cannot prove the cause of death.
As far as the dog bite is concerned, there is no evidence that the dog handler instructed or encouraged the dog to bite Mr Tomlinson.
The decision in this case was taken by Stephen O'Doherty, a Deputy Director of the CPS Special Crime Division and a highly experienced reviewing lawyer. Advice was taken from Tim Owen QC, who is recognised as one of the leading lawyers in the country specialising in police law and criminal law. The Director of Public Prosecutions (DPP) reviewed all of the important material and also attended a number of the meetings with the medical experts. Against that background, he is satisfied that the CPS carefully considered all the evidence in this case.
The CPS is aware that comment has been made about the time taken to reach a decision. We understand the anxiety that this has caused to the family of Mr Tomlinson and the DPP discussed it with them. He is satisfied that the CPS acted as quickly as was consistent with the thorough and careful review of the evidence that was necessary. The review entailed not only the painstaking exercise of mapping the movements of all concerned, over many hours, but also the extensive exercise of seeking to resolve the complex and difficult areas of disagreement between the medical experts.
Why would that be considered appropriate or legal?
