Stoking the fires of resentment

There is concern at a 'crisis of accountability' over a failure to prosecute after deaths in police custody. Paul Donovan reports

In just one week, there were three separate cases that demonstrated the way in which the justice system fails to deal adequately with deaths that occur in police custody. The decision of the jury at Southwark Crown Court to return a verdict of misadventure relating to the death of Brian Douglas was sandwiched between two announcements of the Crown Prosecution Service not to prosecute police officers in two similar cases.

All three cases involved black men who have died in controversial circumstances in police custody over the past 18 months. Brian and Wayne Douglas (not related) both died in south London police stations after the new long- handled batons were used to restrain them. Shiji Lapite died after application of a neck-hold by police officers from Stoke Newington police station in north London. A fourth man, Ibrahima Sey, died in March after CS gas was used to restrain him in the custody suite of Ilford police station in east London. The Police Complaints Authority-supervised investigation into the death of Sey is still in progress.

Three of the four highlighted cases have involved the use of lethal weaponry supplied to the police over the past 18 months. The former chief constable of Devon and Cornwall, John Alderson, has warned of the incremental issue of such weaponry having "a ratchet effect" whereby "violence begets violence".

While the issuing of long-handled batons and CS gas obviously make deaths more likely, the issuing of lethal weaponry is viewed by many as a side issue. The main problem is seen as one of control and the failure of the criminal justice system to bring perpetrators to account for their actions.

Over the past 10 years, there have been 576 deaths in police custody - an average of more than one a week. There have been six unlawful killing verdicts brought in by inquest juries since 1981, yet no police officer has been prosecuted. The message being sent to police officers on the beat by this failure to act is one of "anything goes". Piara Powar, of the Newham Monitoring Group, which monitors police in east London, summarised the position when he said: "When police officers kill, they do so with impunity."

A number of lawyers who have represented bereaved families highlight the inadequacy of the criminal justice system in dealing with deaths in custody.

From the moment the death occurs, the family of the dead person are at a disadvantage. It is the decision of the police force concerned as to whether to refer the case to the Police Complaints Authority, which is said to bring an element of independence to the investigation. The police then carry out an investigation supervised by the PCA. During this period, the family of the deceased hear little about the circumstances of the death. The PCA investigations normally take between three and six months.

Upon completion of the PCA investigation, a copy of the report is forwarded to the chief police officer of the force concerned and the Crown Prosecution Service. The CPS has to decide whether there is sufficient evidence for a criminal prosecution. It applies a dual test as to whether there is a reasonable chance of conviction and whether such action is in the public interest. In the cases of Lapite and the Douglases, the CPS declined to pursue prosecutions.

The next stage is the inquest and the coroner's court. The family still do not know what is in the original police report and there is no right to legal aid to help them pursue their case. This situation contrasts with the resources made available to the police. PCs Duffy and Harrison, who were involved in the Brian Douglas case, had the full backing and resources of the Police Federation at their disposal.

The family has no right to see the evidence gathered by the police or the original report. This limit on the availability of crucial evidence places the family at a distinct disadvantage. Inquest, a non-governmental organisation that works with relatives of those who die in custody, has demanded full disclosure of the police report and all other evidence to family members before they enter the coroner's court. Labour MP Harry Cohen, who has requested public inquiries into recent deaths in police custody, highlighted the problems presented in the Brian Douglas case. He said the decision was based on "all the evidence not being made available to the family, relations and legal representatives".

If a jury brings in an unlawful killing verdict, the case file is usually returned to the CPS. The case of Lapite is the sixth unlawful killing verdict in the past 15 years, and in none of these cases has the CPS decided to bring criminal proceedings against the police.

The only course of action then left open to the families is to take a private prosecution via the civil courts. The family of Brian Douglas is now considering taking such an action.

Solicitor Raju Bhatt, who has represented several victims, describes a crisis of accountability. Deaths occur, unlawful killing verdicts are returned by juries and yet the officers concerned "are allowed to remain untouched, on duty on our streets". He continued: "It is as if all those involved within the relevant authorities - the PCA, the CPS, the police force itself and ultimately the Home Office - appear to believe that exposure of police officers who go too far might endanger confidence in law and order."

The discontent of the public in the way that the criminal justice system is failing to deal adequately with errant police officers is manifesting itself in two distinct ways. The first is via spiralling compensation awards against the police, and the second is in civil disobedience of the type seen last December in Brixton.

The level of compensation pay-outs has steadily risen over the past 10 years. Of the pounds 20m charged to the public purse, pounds 8m was made up of the damages, with the remaining pounds 12m required for police and plaintiffs' legal costs. Last year saw the Metropolitan Police pay out pounds l.56m in damages - a figure that has already been surpassed this year.

In Brixton, while politicians raced to blame "a small criminal element" for the riots and the police attempted to deflect media attention by targeting certain individuals for incitement, the real cause remained hidden. The black community in Brixton was angry because a second black man had died in police custody within six months (Wayne Douglas) after being hit with the long batons. The failure of the criminal justice system to provide solutions for the Douglases or the other 40 people from ethnic minorities who had died in the preceding five years also may have stirred emotions. The ugly riot scenes that resulted offer the other side of public outrage that will undoubtedly follow if the system is not made accountable.

The crisis in this area of deaths in custody is now also bringing the British government into international disrepute. During 1995, the Government was required to answer to a UN special rapporteur on extra-judicial summary or arbitrary executions regarding the deaths of Lapite, Brian Douglas and Joy Gardiner. The special rapporteur expressed particular concern "about the fact that foreigners seem to be disproportionately involved in the allegations of extra-judicial, summary or arbitrary executions" in Britain. In March, the UN Committee on the Elimination of Racial Discrimination commented that "among the victims of deaths in custody are a disproportionate number of members of minority groups". They also noted that "allegations of police brutality and harassment are reportedly not vigorously investigated, and perpetrators, once guilt is established, not appropriately punished".

A number of civil rights organisations, lawyers, coroners and MPs have called for a new process to be established whereby complaints of police brutality are independently investigated with the perpetrators being punished. Bhatt suggests the funding for such an independent body could come from the money being wasted on the present haemorrhaging system. Bhatt suggests that pounds 20m could be redirected to support an independent body that would carry out investigations, consider evidence and bring prosecutions in the criminal courts.

John Alderson also sees a need to address the crisis in the present system. He favours the establishment of an independent commission to "carry out a full inquiry and report to the Home Secretary".

Inquest is demanding an independent scheme of investigating deaths in custody. Co-director Deborah Coles said: "We implore the Government to lift the veil of secrecy and silence surrounding controversial deaths and the subsequent investigatory process to ensure public accountability and justice."

The UN Committee on the Elimination of Racial Discrimination recommended that "investigations into deaths in custody be carried out expeditiously by independent inquiry mechanisms".

But perhaps it is Donald Douglas, the brother of Brian, who best summarises the reason as to why urgent action is needed to address this problem and for the establishment of an independent accountable process. He said: "I fear that the numbers killed in police custody over recent years without redress may have helped to shape the attitude that informed those officers when they brought down that baton on my brother's skull."

In the long term, failure to address the present crisis of accountability in this area of the criminal justice system can only lead to more grieving relatives, burgeoning compensation claims and, ultimately, riots.