Thursday, 9 April 2009

The rule of law is stronger than my bigotry

Last week a scruffy middle aged man had a heart attack. Not me, on this occasion, my next one won't be long coming but it hasn't happened yet. His name was Ian Tomlinson and his myocardial infarction was fatal. He was in the vicinity of a demonstration in the City of London and keeled over shortly after being in somewhat closer proximity to a policeman's baton than he might have liked. It is reported that the officer who pushed or knocked him to the ground has been suspended pending enquiries.

My guess, from the little I have seen about the incident, is that Mr Tomlinson was asked or told to move on and failed to do so. Assuming that request was lawful (which it probably was) the police would have been entitled to use reasonable force to have their lawful order complied with. If the force used against Mr Tomlinson was reasonable in all the circumstances the officer did not commit any offence even if Mr Tomlinson's heart attack was caused directly by the force used against him.

In the event that the force used against him was not lawful (because there was no prior request or order to move or because it was excessive force) the officer involved would be guilty of assault. He could even be guilty of manslaughter if the assault caused the fatal heart attack.

There are many ifs and buts in the whole thing. It is impossible to know the true position as an observer from the sidelines. Some will claim the police were in the wrong because that suits their political purposes, either because they support the demented crusty hippies or because they see it as evidence that we have become a police state. Others will claim the police were in the right because it matches their preconceptions. But no one knows because not all the relevant facts are in the public domain.

I am as guilty as anyone of seeking to judge cases like this and I do it from my point of view, with all the bias, preconceptions, stereotypical analysis and bigotry that involves. Some have commented that I don't seem very bigoted despite my chosen non de plume, well, on a topic like this my bigotry runs deep. I see Mr Tomlinson dawdling in front of a police line and assume he had been asked or told to move away at least once. My assumption is based on knowledge that they are required to make such a request of give such an order before they use any force at all. That doesn't mean it happened, but it explains my assumption. I see Mr Tomlinson's reaction when he is on the ground. His face snarled not, I think, by fear or pain but by shallow macho aggression. His hands reach out as his neck juts forward, just as you see in pubs on a Saturday night when the man with tattoos wants to pick a fight to impress his mini-skirted belle: "Are you looking at my bird? 'Ere, I'm talking to you, are you looking at my bird?" It's the same reaction you see on the football field when the modern style of overpaid professional cheat commits a foul and tries to defraud the referee with dishonest protestations of innocence.

If (and it's a big if) my estimation of Mr Tomlinson is correct - and don't give me any of that sanctimonious "don't speak ill of the dead" nonsense, I'm just calling it as I see it wearing my bigot hat - none of it excuses criminal conduct by the police. The rule of law, more than anything else, is what distinguished a civilised nation from a barbarian nation. It also distinguishes a flawed and damaged civilised nation from a police state. There can be no excuses and no whitewash if a police officer caused Mr Tomlinson's death by acting outside the law. If he acted within the law, he is as blameless as any of us would be using lawful force. If he acted outside the law, the penalty must be the same as it would be for you and me.

Had Mr Tomlinson not died a few minutes after the incident there would be no debate and no wild accusations. The footage of him being pushed/beaten to the ground would be a minor part of a review of events on the latest day the crusties thought they could overthrow capitalism. But he did die. It was as great a tragedy for his family as any death is for any family. They are entitled to know what happened and to see that justice is done according to the imperfect laws we have.

My mind goes back many years to my early days in the law. I was the most junior member of the team representing a defendant at the Old Bailey. My client was an occasional opportunist burglar of the grossest incompetence. To him an open window was an invitation for felonious entry and the grabbing of whatever saleable items he could carry. One night he passed a block of disheveled flats and couldn't resist the temptation of an open window. The flat in question was occupied by an old man who lived in awful conditions. Cockroaches and mice were rife. His wardrobe consisted of two pairs of trousers, a few nylon shirts and underwear of dubious age and cleanliness. He lived on bread and tins of soup. The hapless burglar had alighted upon one of the few properties in London containing absolutely nothing of value. Unfortunately he also alighted upon a frail old man who, despite his lonely existence and squalid living conditions, was entitled to live without disturbance and found the disturbance such an ordeal that he keeled over and died. A fatal heart attack. A pointless petty burglary resulted in a conviction for manslaughter and, if my memory is correct, nine years in prison.

A police officer who oversteps the mark and becomes a criminal rather than an upholder and enforcer of the law is no different from my pathetic client of long ago. Actually, there is a difference. These days there is little chance that nine years in prison will be the result. Maybe a sentence of five to seven of which only half will have to be served. But that is by-the-by, what matters is that the rule of law is upheld whatever one thinks of someone who behaved like Mr Tomlinson.

1 comment:

james c said...


Surely your client was concerned that the property was not secure, heard a cry for help and climbed in through the window.