Why not let the jury decide?

Police are rarely prosecuted after deaths in custody, says Patricia Wynn Davies

Tomorrow, two horrible deaths in police custody and what a judge has described as torture by officers will come back to haunt Barbara Mills, the Director of Public Prosecutions, in an unprecedented High Court challenge. It will be the first time that judicial review has been used to challenge decisions by the Crown Prosecution Service not to prosecute police officers whose use of force has resulted in death or serious injury.

The three linked cases raise wider questions. Why is it that police officers whose behaviour has led to findings of unlawful killing so rarely face criminal charges, or even disciplinary proceedings?

Does anybody much care? Only, it seems, the victims and their families and a small but dedicated group of professionals. Cases involving deaths in custody show that without the resolve of victims' relatives, and without the help and dedication of the voluntary group Inquest, distressing cases would barely be noticed.

In the two death in custody cases coming before the court tomorrow, inquest juries have already decided unanimously on the criminal standard of proof (beyond reasonable doubt) that the excessive force used by officers meant that their charges had been unlawfully killed. The victims' families want to see the officers charged with manslaughter.

In the case of 34-year-old, Nigerian-born Shiji Lapite, pathologists' reports revealed that he had suffered 36 to 45 separate injuries at the hands of two officers from London's Stoke Newington police station in December 1994. The force of a neck-hold was sufficient to fracture the bones in the larynx and suffocate Mr Lapite until he died. One officer also admitted kicking him in the head, and another to biting him.

At the inquest, one of the officers, PC Paul Wright, admitted applying the neck-hold; the other, PC Andrew McCallum, admitted kicking Mr Lapite twice on the head, as hard as he could. Their justification was that Mr Lapite, who the post-mortem revealed had taken alcohol and cocaine, had tried to strangle PC Wright.

But the coroner repeatedly pointed out the gross disparity between the numerous injuries found on Mr Lapite and the virtual absence of injury to the officers. Dr David Rouse, the Home Office pathologist acting for the coroner, said the absence of any marks around the neck of PC Wright threw "very serious doubt" on their allegation that Mr Lapite was attempting to strangle the officer.

There is a further question mark over the action taken in the aftermath of the death. Tomorrow's case will also include a separate challenge to the Police Complaints Authority's unaccountable decision not to recommend that the Metropolitan Police take disciplinary proceedings.

The decision to rule out disciplinary charges was taken "after reviewing all the evidence and taking counsel's advice", although Molly Meacher, the supervising authority member, reissued an earlier call on the Met to ensure that officers understood the risks of neck-holds. The decision was first communicated at an awkward meeting between Mrs Meacher and Olamide Jones, Mr Lapite's widow, and her solicitor. The decision letter handed to Mrs Jones made plain Mrs Meacher's "considerable concerns" about the incident, which she had taken up with the Metropolitan Police. But asked to explain the PCA's attitude to the evidence of Dr Rouse, she replied that this simply threw doubt on the actuality of events described by the officer, but not on their beliefs or state of mind.

The inquest jury had taken a different view of the seriousness of the incident, and the Lapite family want to know why a Crown Court jury has, in turn, been prevented from making up their own minds.

In the second case, Irish-born Richard O'Brien, a 37-year-old market trader and father of seven, was found to have 31 separate areas of injury on his body. After a disturbance at a dance at a south London hall in April 1994, he was arrested for being drunk and disorderly. Officers placed the 19-stone Irishman face down on the ground with his hands handcuffed behind his back and his legs folded back against his thighs. An officer knelt on his legs and two others held him down. He died of postural asphyxia, the risks of which, like neck-holds, have been the subject of previous warnings to the police.

Mr O'Brien's wife Alison testified to the inquest that she heard her husband say, "I can't breathe, let me up, let me up, you win"; an officer kneeling on his upper back had replied, "We always win."

Here, the Metropolitan Police agreed with the PCA that two officers should be charged with the disciplinary offence of neglect of duty. In the eyes of the O'Brien family, that is not enough. They, too, want a Crown Court jury to decide whether the actions of the officers amounted to manslaughter.

The coroner told the jury that to bring in a verdict of unlawful killing, they would have to be sure that the evidence pointed to manslaughter. That meant a finding of (a) "unlawful act" manslaughter; (b) manslaughter through the use of excessive force; or (c) manslaughter through gross negligence.

Manslaughter prosecutions are not unknown in other areas of public service, such as coach drivers who cause death through "gross negligence". Such prosecutions generally have the weight of public opinion behind them.

The third case coming before the High Court has likewise already been the subject of a definitive legal ruling in a civil court, but the CPS has declined to prosecute officers for assault and perjury. Derek Treadaway was convicted for robbery on the basis of a signed "confession" extracted by the now-disbanded West Midlands Serious Crime Squad. In a High Court ruling in 1994, Mr Justice McKinnon awarded him pounds 50,000 in damages after finding "on a high degree of probability" that officers had obtained the confession by suffocating him to the point of unconsciousness by putting plastic bags over his head.

Mr Treadaway's previous convictions were irrelevant, the judge said, to the award and still less to the right not to be subjected to what amounted to "nothing less than torture". The plaintiff, with all his faults, had been placed in a situation where he was entitled to expect that he would be given the protection of the law, he continued. "The police officers concerned had shown contempt for the plaintiff and thus for the rule of law." Quite so.