This week, Simon Harwood was cleared of killing newspaper seller Mr Tomlinson during the G20 protests in London in 2009. The latest developments, at the time of writing, are outlined here, for example. Ian Tomlinson was an English newspaper vendor who collapsed and died in the City of London on his way home from work during the 2009 G-20 protests. An inquest jury found in May 2011 that he had been unlawfully killed. Simon Harwood, a constable with the Territorial Support Group of London’s Metropolitan Support Group was charged that month with manslaughter and was found not guilty on 19 July 2012 at Southwark Crown Court. The first PM, conducted two days after the death, concluded that Tomlinson had died of natural causes after suffering a heart attack. His death became controversial four days later when The Guardian published video footage from an American investment manager who had been visiting London. The video showed Tomlinson being struck on the leg from behind by a police officer wielding a baton, then pushed to the ground by the same officer. He walked away after the incident, but collapsed and died minutes later.
Here is the footage from the Guardian, watchable on YouTube, with a helpful explanatory commentary.
After The Guardian published the video, the Independent Police Complaints Commission (IPCC) began a criminal inquiry. Further postmortems, conducted by three other pathologists on April 9 and 22, indicated that Tomlinson had died from internal bleeding caused by blunt force trauma to the abdomen, in association with cirrhosis of the liver. The Crown Prosecution Service (CPS) announced over a year later in July 2010 that no charges would be brought against Harwood, the officer identified as having struck him, because the disagreement between the first and later pathologists meant the CPS could not show a causal link between the death and the alleged assault. That position changed in May 2011 when an inquest jury returned a verdict of unlawful killing, ruling that the push and baton strike had involved unreasonable force. This led the CPS to review its decision and charge Harwood with manslaughter.
Voluntary manslaughter occurs either when the defendant kills with a mental state which could be described as “malice aforethought” (an intention to kill or cause serious harm), but there are mitigating circumstances which reduce culpability, or when the defendant kills only with an intent to cause serious bodily harm. A killing which occurs after provocation by an event which would cause a reasonable person to lose self-control. There must not be a cooling off period negating provocation. If there is an interval between the provocation and killing sufficient to allow the passion of a reasonable person to cool, the homicide is not manslaughter, but murder. Here, critically, the footage video shows no provocation on Tomlinson’s part—he was not a protester, and at the time he was struck was walking along with his hands in his pockets. If one argues that it is uncertain beyond reasonable doubt that Harwood wished to kill Tomlinson in the first place, voluntary manslaughter for securing a conviction is not an option.
Constructive manslaughter is also referred to as ‘unlawful act’ manslaughter. It is based on the doctrine of constructive malice, whereby the malicious intent inherent in the commission of a crime is considered to apply to the consequences of that crime. It occurs when someone kills, without intent, in the course of committing an unlawful act. The malice involved in the crime is transferred to the killing, resulting in a charge of manslaughter. For example, a person who runs a red light in their vehicle and hits someone crossing the street could be found to intend or be reckless as to assault or criminal damage (see DPP v Newbury). There is no intent to kill, and a resulting death would not be considered murder, but would be considered involuntary manslaughter. The accused’s responsibility for causing death is constructed from the fault in committing what might have been a minor criminal act.
The difficulty here is proving beyond reasonable doubt, and this is where the Court can only be directed by expert opinion evidence from medical professionals, who can give such evidence which is admissible in a criminal court, that causation had taken place. There has been to proven a direct link between the baton strike and the subsequent death. This was discussed in R v White (1910), where the prosecution failed to establish causation in fact; The defendant put cyanide into his mother’s drink, but she died of heart failure before the poison could kill her. The answer to the question ‘But for what the defendant did would she have died?’ was in fact ‘No’ as she would have died anyway. She had not committed murder.
I’ve never read the judgment, but patients with severe cirrhosis, in my knowledge, always have deranged clotting evidenced by their clearly abnormal prothrombin and APTT times. Such patients would therefore be extremely prone to haemorrhage, and a direct blow by the baton to Harwood would be different as Harwood is a susceptible individual. This rule is therefore highly relevant, in my view. Cited formally, the ‘thin skull’ rule says that the defendant must take his victim as he finds him. Therefore, even if injury or death is not reasonably foreseeable the law still considers the defendant liable if the victim suffered from some physical or mental condition that made him or her vulnerable.
Helena Kennedy QC explained on BBC Any Questions last night that the burden of proof in criminal law was necessarily high, beyond reasonable doubt. This was to large degree a public policy consideration, so that the State and the public could feel safe in the convictions that the Crown had secured, and this necessarily was a good thing. Having a jury go through the evidence in detail was felt to be far superior to trial by media, argued by other panellists such as Kelvin Mackenzie.
I personally feel that we should not go down a path where ‘trial by media’ becomes superior to the criminal justice system. I feel that the public, especially law students, should be very careful about what they tweet in public, as the law and medical issues in this case are extremely complicated.
The author of this blogpost does not practice law or medicine, has postgraduate degrees in both, but has a strong academic interest in such matters.
