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Cite as: [2009] ECHR 1573
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1 October 2009
FOURTH SECTION
Application no.
42078/02
by Janet ALDER
against the United Kingdom
lodged on
30 September 1998
STATEMENT OF FACTS
THE FACTS
The applicant, Ms Janet Alder, is a British national born in 1961 and she lives in Lancashire. She is represented before the Court by Mr A. Gask, a solicitor with Liberty, a civil liberties’ organisation based in London.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows. It concerns the death of her brother, Christopher Alder, while he was in the custody of Humberside police on 1 April 1998. Mr Alder was of Nigerian origin, he was born in 1960, he had two children and he had lived in Hull since 1990.
A. The circumstances of the case
1. The events of 1 April 1998
At approximately 02.15 Mr Alder was punched in the face by Mr Paul outside a nightclub. Mr Alder fell to the ground, hit his head and was unconscious for some time. An ambulance and police officers (PC Dawson and PC Blakey, “the arresting officers”) arrived at 02.30. Mr Alder was taken to hospital by ambulance. The police officers did not speak to him at the nightclub and went on to the hospital. As he was being transported, the police officers radioed their control room noting that he was “well in drink”.
Mr Alder arrived at hospital at around 02.44. His behaviour was erratic (both requesting and refusing treatment) and he was verbally aggressive. He was examined by two nurses and a doctor: he had a laceration to the upper lip, one tooth missing and another loosened, the Glasgow Coma Scale yielded 14 out of 15 (a neurological scale providing a means of recording the conscious state of a person, notably after a head injury) and his blood alcohol count was around twice the driving limit (that his alcohol level was not excessive was later communicated to the arresting officers by a senior nurse on duty). The treatment plan was admission for observation, a head x-ray and reference to a maxilla-facial specialist. However, his erratic behaviour rendered his admission and management difficult.
The arresting officers arrived at the hospital (at or around 03.05) and saw Mr Alder’s behaviour and the difficulties of the medical staff. At one point, Mr Alder got up to go to the toilet, then collapsed on the floor, was taken into the toilet by those officers, who stood at the door to the toilet while Mr Alder urinated on the floor in front of them. He was verbally aggressive and somewhat incoherent to the police officers. Hospital staff indicated to Mr Alder that they could not treat him if he continued behaving as he did. The arresting officers dragged him outside backwards. Once outside, Mr Alder continued his behaviour, was verbally aggressive to those officers and was arrested for breach of the peace. The arresting officers threatened to use CS gas, both inside and outside the hospital.
A police van was called at 03.34 and arrived at the hospital around 03.40 driven by A/PS Ellerington. Mr Alder was conscious and behaving rationally prior to entering the back of the van. In later statements, those police officers indicated that the arresting officers drove in the police car behind the van driven by A/PS Ellerington.
After a five-minute journey, the van arrived at Hull Queen’s Garden police station (at approximately 03.46). The gatekeeper recalled PC Dawson only getting out of the police car. On arrival, Mr Alder was unconscious, the arresting officers describing him as being in the same position in which they had placed him in the back of the van although slumped in his seat with his head against the back of the van. The arresting officers, considering that Mr Alder was feigning unconsciousness, dragged him (by his upper arms, face down with his lower body dragging) into the police station, down the corridor and into the custody suite area.
The latter area comprises a prisoner/reception area (a relatively small corridor space) with a bench attached to one wall opposite a work counter or “charge desk” behind which is the custody officers’ charge room area. Various cameras recorded constantly (image and sound) the custody suite. The applicant submitted, inter alia, recordings of Mr Alder being carried down the corridor and of his being placed and subsequently dying in the prisoner/reception area of the custody suite as well as a timeline of relevant events in the custody suite.
A number of persons were present in the custody suite during the relevant time (03.46.52 to 03.57.25). The custody officer on duty was PS Dunn assisted by the custody warden, PC Barr. A civilian employee, Ms Winkley, came in and out. A/PS Ellerington came into the custody suite for a few minutes (03.48.51 to 03.51.23). PC Wildbore briefly came into the suite at 03.50. PC Dawson and PC Blakey were present throughout. All persons circulated around the work counter just beside Mr Alder.
Mr Alder was placed on the floor of the prisoner reception area (just in front of the charge desk) of the custody suite by the arresting officers at 03.46.52. His body was inert and he never moved thereafter, his hands were handcuffed behind his back and he was placed (carefully) face downwards on the floor his left cheek on the ground and his head facing to the right towards the custody desk. Some blood dripped from his mouth. His trousers and underwear were around his knees (naked from waist down) and he was doubly incontinent. From arrival, his breathing was audibly slow and extremely laboured.
Once Mr Alder was placed on the floor, the custody officer immediately said that he should be taken to hospital. PC Dawson responded they had just come from there, PC Blakey added that the hospital would not have him and that Mr Alder was “right as rain”. PC Dawson went on to note that Mr Alder was “acting”, PC Blakey adding that it was “a show”: both repeating this point of view during the relevant time. Approximately 2 minutes after arrival, PC Blakey began to remove the handcuffs (at one point assisted by PC Blakey): this procedure took in the region of 2 minutes and Mr Alder remained motionless during the procedure. Otherwise during the relevant period, the arresting officers and PC Dunn essentially discussed around the work counter the charging of Mr Alder (for breach of the peace or a minor public offence order), the incident in the nightclub and his behaviour in and outside the hospital. Mr Alder continued breathing in an audible and laboured fashion as before and never moved. While certain officers looked down at him from time to time, for a period of 4 minutes (03.53.16-03.57.17) no one looked down at him. Apart from taking off the handcuffs, no one touched Mr Alder during the relevant time.
At 03.57.17 PC Barr looked over the counter and at 03.57.25 he stated that “He’s not making those noises anymore”, adding that there was blood coming out of his mouth and, immediately, that he was not breathing.
From 03.57.48 PC Barr and, then, PS Dunn began efforts, with others, to provide medical assistance to Mr Alder. An ambulance was called, it appears, at 03.57.58. At 04.05.54 the paramedics arrived (the same who had attended Mr Alder outside the nightclub). They unsuccessfully attempted to resuscitate him and stopped at approximately 04.35. The forensic medical examiner arrived at 06.07 and pronounced Mr Alder dead at 07.20.
At some stage immediately thereafter, PC Dawson and PC Blakley left the custody suite and made notes of what had taken place (there is no evidence they were required to do this separately) and their notes were countersigned at the same time at 04.45.
At 05.45 a conversation was recorded off camera between PS Dunn, PC Barr and Ms Winkley. PC Barr emphasised that they had been entitled to rely on the information that “the doctors kicked him out” and PS Dunn observed in reply that “but then he he’s.. laid face down... I mean you could say we should have put him in the recovery position”.
2. The West Yorkshire police investigation (death in custody) and the Humberside police investigation (murder)
Between 06.00 and 07.00 on 1 April 1998 a murder investigation (as regards the assault in the night club) was opened by Humberside police. Superintendent Bates was the senior investigating officer (“SIO”) and he was supported by DCI Davison.
The Police Complaints Authority (“PCA”) was contacted by Humberside police in the early hours of 1 April 1998 given the death in custody. Chief Inspector Beckett of Humberside Police Discipline and Complaints Department subsequently confirmed (to the Independent Police Complaints Commission – “IPCC”) that the West Yorkshire police had been chosen to investigate the death in custody because they were close by (and so logistically handy) and because they owed Humberside police a favour. West Yorkshire police appointed Superintendent Holt as the SIO and he was to be assisted by Inspectors Tolan and Morris (a third officer, Inspector Grubb, also assisted at some point). Their investigation officially began with their arrival at Humberside police station at 13.15 on 1 April 1998.
Having observed the body in situ at 10.15, a post-mortem examination (the first) was conducted by Dr. Clark (a Home Office pathologist appointed by the Coroner) at 17.00 on 1 April, in the presence of the West Yorkshire SIO and the Coroner.
Mr Paul, having heard about Mr Alder’s death, voluntarily attended the police station with a solicitor in the evening of 1 April and was arrested for murder. On 2 April, after the initial assessment by the pathologist (Dr Clark) had been received, Mr Paul was de-arrested for murder, and, following interviews, was charged with causing grievous bodily harm with intent.
Inspector Tolan later recalled (to the IPCC) that they were initially led to believe that Mr Alder had walked into the custody suite but he realised, when he saw the recordings of the custody suite on 3 April 1998, that that was not the case. The West Yorkshire SIO advised the Humberside SIO to watch the recording: the latter described his reaction (to the IPCC) as follows:
“I sat and watched it with my team. I remember silence in the room as we watched it. Every minute that went by that he laid on the floor, I was actually willing, I remember mentally willing someone to go to look at him. Eventually they did, but it seemed an age. I remember being shocked”.
On 6 April a toxicology report on Mr Alder was produced. Tests for numerous drugs were negative. Alcohol was the only drug detected. On the same day the West Yorkshire SIO and an assisting Inspector went on holiday for one week.
Between 8 and 10 April “Regulation 7 notices” were issued to Officers Dawson, Blakey, Dunn, Barr and Ellerington (“the five officers”) to the effect that consideration was being given to bringing disciplinary proceedings against them as regards Mr Alder’s death and on 30 April they were suspended from duty. No notice was served on PC Wildbore.
The Humberside murder investigation ended on 29 April 1998 approximately.
The five officers were interviewed by the West Yorkshire police in mid-May 1998.
On 27 May 1998 the pathologist (Dr. Clark) issued his written report. He confirmed that the assault injuries on Mr Alder did not cause or contribute to Mr Alder’s death but rather set in train a chain of events which eventually did. He excluded natural disease, drugs or alcohol as being the cause of death. It was most difficult, but crucial, to understand what happened to Mr Alder in the van since:
“Either he became acutely unwell there, going from being ‘normal’ to unconscious within a matter of minutes, or something else happened. ... Whatever it was that happened to him, it is important to clearly identify and separate it from, anything which may have happened in the police station. Thus, he collapsed because of something which happened in the van while his actual death in the police station may or may not have been contributed to by additional factors acting there.”
He described it as “impossible to know” whether medical treatment at the police station would have changed the outcome.
A second pathologist’s report (requested by Mr Paul) was delivered by Dr Gray also on 27 May 1998. It was “indeterminable” whether death could have been avoided by earlier medical intervention. Dr. Lawlor conducted a third post-mortem (requested by the five officers). He reported that he had absolutely no doubt that the events in the van were crucial to Mr Alder’s death as there was “no escape from the conclusion that his condition deteriorated from being fully conscious when put into the van to what was quite obviously, at least in retrospect, unconsciousness on arrival at the police station.” His treatment at the police station may have contributed to his death, but did not necessarily do so. A fourth post-mortem report was prepared by Dr Cooper (requested by the applicant): it opined that the earlier assault had no direct part in Mr Alder’s death, that it was not possible to determine the cause of death and that prompt medical treatment “might have affected the outcome”.
The West Yorkshire police investigation (death in custody) ended on 30 June 1998 when an investigation report was sent to the PCA and the Crown Prosecution Service (“CPS”). That report made 110 final recommendations with regard to disciplinary proceedings and criminal charges. It highlighted the potential failure of the arresting and custody officers to take the apparently obvious medical needs of Mr Alder into account while he lay on the floor of the custody suite. The report criticised the arresting officers’ failure to question their assumptions about Mr Alder’s behaviour in the hospital and the apparent change after he was placed in the van. The report also queried the custody officer’s failure to investigate the changes in the health of the deceased between his discharge from hospital and arrival at the police station and to independently determine whether he was fit for detention. The report queried whether there was sufficient evidence upon which it could be shown, beyond reasonable doubt, that the acts and omissions or the police in the custody suite had “materially contributed” to the cause of Mr Alder’s death. A short follow-up report dated 7 August 1998 was also submitted by the West Yorkshire police concerning the possible use of CS gas and the journey times from the hospital.
On 10 July 1998 the criminal proceedings against Mr Paul were formally discontinued. Mr Paul then issued civil proceedings against Humberside police alleging that his arrest and charging were designed to detract attention from criticism of the police as regards Mr Alder’s death in custody. In January 2006 a jury found, inter alia, that on the balance of probabilities Mr Paul’s arrest and charging were occasioned by a desire to deflect criticism from Humberside police.
On 23 July 1999 the CPS decided that there was insufficient evidence to prosecute the five officers with gross negligence manslaughter. On 6 August 1999 the five officers were served with summonses charging them with misconduct in public office. The CPS then decided to postpone the criminal proceedings pending the outcome of the inquest, a decision to which neither the Alder family nor the five officers objected.
3. The inquest
On 3 July 2000 the inquest into Mr. Alder’s death opened and it lasted for 33 days. The applicant and her brother Richard Alder, the five officers, Humberside Police, the Local Health authority and the Local Ambulance Trust were represented by Counsel. In total 58 witnesses (including medical) were heard. Medical experts had been retained by the Alder family, Mr Paul, the five officers, the Local Health Authority and the CPS and the inquest heard, in all, 16 of those experts. A further 38 witness statements were read. The five officers exercised their right not to answer any questions that would incriminate them so they did not give evidence.
The summing up of the Coroner ran to 280 pages. As to the last of the standard questions in the Inquisition Form (“Conclusion of the Jury as to death”), the Coroner advised the jury on the four possible conclusions open to them on the evidence (excluding an assault by the police on the applicant as the evidence did not support that).
One of the four conclusions left open to the jury by the Coroner was “unlawful killing” to which the jury was advised it had to apply the criminal standard of proof. Unlawful killing as it applied to the case was described as involuntary manslaughter or manslaughter by gross negligence. The Coroner explained that involuntary manslaughter contained three ingredients: there had to be negligence (a breach of a duty of care) consisting of an act or omission, the negligence had to have caused the death more than “minimally, negligibly or trivially” and the negligence had to be such that it could be characterised as “gross”. As to the second ingredient (causation), the Coroner summarised the evidence of the medical experts heard and guided the jury as follows:
“I am sorry [the medical evidence] took quite a long time to run through, but it is a matter for you to decide whether you are satisfied so you are sure that any omission you may find, by any police officer, actually caused the death.
Now let us look at causation again. The definition - The negligence must have caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death.
On the one hand, none of the experts can be sure that even if he had received the best possible immediate care in the custody suite he would have survived. They cannot rule out that on arrival at the custody suite he might have already sustained such a catastrophic medical event in van that he was effectively doomed to die.
Nobody knows what happened, medically speaking, in the van and experts tell us we will never know that. If he was doomed to die, that would be because of the degree of oxygen deprivation he would have suffered.
The experts cannot be sure that his condition was survivable, although the consensus is that it probably was, and there we go again, those words “sure” and “probable”. They are very important in this case. “Sureness” is the test you have to apply to this conclusion, not “probability”.
On the other hand some experts, notably perhaps Professor Crane and to a lesser extent possibly Dr Carey, approached this problem - and problem it surely is - from a different direction. That approach is as follows.
We will never know what the cause of the unconsciousness in the van was, but we do know that Christopher was in a deleterious position on the floor and his upper airway was obstructed to some degree
Professor Crane said that no matter what the cause of unconsciousness was, death was ultimately due to upper airway obstruction from his position on the floor and inhalation of blood. It was he who suggested the immediate - and I stress the word “immediate” - cause of death as “upper airway obstruction, inhalation of blood and postural asphyxia, with head injury and alcohol contributing”. It was his opinion that whatever the reasons for loss of consciousness, the position in which Christopher was placed hastened death significantly, and both these factors were more than minimal or negligible.
I suggest you ask yourselves this question, members of the jury, as you wrestle with this difficult concept of causation: If the experts cannot be sure that his condition was survivable, come what may when he arrived at the custody suite, can you in turn be sure, as a jury, that any hastening of the death you may find by omitting to place him in the recovery position and check his airway etcetera, caused his death more than minimally, trivially or negligibly?
His death may have been hastened by his position but can you say that caused his death more than minimally if, because we do not know the cause of his unconsciousness, we cannot rule out as a reasonable possibility that he might have died shortly anyway? Can you be sure that a slight hastening - and that is what we have been talking about and that is what it might have been - can you be sure that a slight hastening, and that is what it might have been, can properly be classed as a contribution to his death that is more than minimal? That is for you to decide.
...
The essential question for you on this point is this: Can you be sure that any act or omission by any individual police officer caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death?”
In respect of the third ingredient (whether the negligence was “gross”), the Coroner advised the jury that that meant negligence such as would demonstrate a disregard for the life of another of a kind which was properly to be described as criminal. A jury might properly conclude as to gross negligence on proof of (he repeated this and made the jury write it down):
“A. An indifference to an obvious risk of injury to health.
B. Actual foresight of the risk, coupled with the determination nevertheless to run it.
C. Actual foresight of the risk, coupled with an intention to avoid it, but involving such a degree of negligence in the attempted avoidance, that the jury considered justified conviction, or
D. Failure to advert to a serious risk, going beyond mere inadvertence in respect of an obvious and important matter, which the defendant’s duty demanded he should address. In respect of this fourth category, the failure to advert to a serious risk, the person owing the duty of the care must know of the risk , and pay no attention to it.”
On 24 August 2000 the jury unanimously answered the standard questions in the Inquisition Form as follows:
- Injury or disease causing death: “Multi factorial events leading to a level or unconsciousness which resulted in upper airways obstruction and positional asphyxia”.
- Time, place and circumstances at or in which the injury was sustained: “On 1 April 1998 in Hull, between 03.41 and 04.00 whilst in police custody, travelling in a police van from Hull Royal Infirmary and being placed on Queen’s Gardens custody suite floor, Christopher Alder met his death”.
- Conclusion of the jury as to the death: “Christopher Alder was killed unlawfully”.
4. The judicial review proceedings
The five officers brought judicial review proceedings against the Coroner arguing, inter alia, that there was insufficient evidence upon which a jury properly directed on the law could return a verdict of unlawful killing.
On 9 April 2001 Mr Justice Jackson dismissed the application ([2001] EWHC Admin 352). He acknowledged the concession of the five officers that the only live issue was whether there was a prima facie case that their acts and omissions had caused Mr Alder’s death. In that respect, the five officers had conceded that there was sufficient evidence upon which a jury could conclude that there was a breach of a duty of care owed to Mr Alder and that there had been negligence on their part. However, they disputed that their failure to provide medical assistance was a “material contributory” cause of death (the second ingredient of involuntary manslaughter). The judge referred to the Coroner’s summing up of the medical evidence and noted that the evidence of Professor Crane (State pathologist for Northern Ireland) alone would have enabled the jury to find causation proven to the criminal standard and the jury was entitled to accept his views even though he disagreed with other experts in some respects. Three other experts (including Dr. Clark, the pathologist appointed by the Coroner) all considered that the lack of attention to Mr Alder’s airway at the very least hastened death. While it was quite true that, in many respects, the doctors qualified their views with appropriate notes of caution, scientific certainty was not required even when a matter had to be proven to the criminal standard.
5. The criminal proceedings
In the aftermath of the inquest the CPS continued to consider the views of their and other medical experts (including those retained by the applicant). There was a range of further medical opinions: some experts expressed a degree of certainty that the collapse in the van was occasioned by cardiac failure in which case death would have been almost inevitable, whereas other experts expressed the view that the collapse was caused by upper respiratory failure, in which case intervention in the police station would have saved Mr Alder’s life or otherwise substantially prolonged it.
Two conferences were held with the medical experts and the CPS. The first conference (6 March 2001) was inconclusive. The second conference (9 October 2001) was attended by Professors Crane, Adgey and Hall and Dr. Cary as well as members of the CPS prosecution team and resulted in an agreed note supporting a prosecution for gross negligence manslaughter:
“Professor Crane and Professor Adgey maintain their view that, although it remained impossible to state firstly the reason for [his] unconsciousness, or indeed secondly for how long he would have continued to live, nevertheless without doubt the policemen had prevented his initial (emphasised) survival.
Accordingly there were sufficient grounds for asserting to the criminal standard of proof that the actions and neglect of the police men had contributed more than minimally to the cause of the death. On that basis they regarded the view of Professor Hall, to the effect that you could not be sure whether or when Mr Alder would have died in any event, as not materially affecting the issue.
In summary, on this analysis, if the deprivation of the chance to survive amounted to more than minimal contribution to death, all the experts were agreed that they could say that the actions and inactions of the policemen did satisfy the criterion to the criminal standard of proof. Further, in any event Professor Adgey and Professor Crane were content to state that they were sure that the conduct of the policemen amounted to a more that minimal contribution to the primary cause of death, namely asphyxia. Thus far, Professor Hall and Dr Cary were minded to agree with them. It was only if the test became, ‘was there a possibility that he would have died at about this time anyway?’ that they could not rule this out to the criminal standard of proof”.
The trial judge agreed in March 2002 to the CPS’ request to add a count of gross negligence manslaughter to the indictment (in addition to the existing charge of misconduct in public office).
The criminal trial of the five officers took place between 15 April and 21 June 2002. The medical experts who had debated the causation issue over the previous four years gave evidence including all expert witnesses consulted by the CPS. At the close of the prosecution case the trial judge dismissed both charges, not leaving either charge to go before the jury.
As regards the gross negligence manslaughter charge, he noted that the only matter of law raised by the defence was whether there was sufficient evidence that the negligence of the police officers caused the death and he summarised the medical evidence in that respect:
“The medical evidence called by the prosecution in this case falls into two groups. The first consists of those doctors whose ultimate view is that they cannot be sure that the actions or inactions of the police contributed more than minimally to Mr Alder’s death. ... Within this group there are differing opinions as to the answers to the main questions which arise in the case and the level of the police officers’ contribution to the death of Mr. Alder. But ultimately their opinions all fall short of the standard necessary for the prosecution to successfully pursue manslaughter, and on their evidence the prosecution would not have mounted.
The second group of medical witnesses ..., all of whom state that they are sure ... to the criminal standard of proof, that the conduct of the defendants more than minimally contributed to the death of Christopher Alder. On this matter they all agree although within the group also there are differing opinions on central issues, such as the cause or causes of Mr. Alder’s unconsciousness.”
The trial judge found that the evidence of the second group of medical witnesses did not provide, either as a group or in conjunction with the first group, a prima facie case which could be left to the jury. He concluded that the evidence upon which the jury could safely convict did not show that the conduct of the defendants “more than minimally” caused Mr Alder’s death.
The trial judge went on to dismiss the second charge of misconduct in public office. He found that the appropriate test for criminal liability under this charge was whether the officers had deliberately overlooked the risk that Mr Alder was in need of medical treatment (as opposed to merely failing to appreciate that such a need had arisen) and that test had not been fulfilled in the present case. In so ruling, the trial judge noted that, if the test for criminal liability was negligence, there would undoubtedly have been a case to answer.
While there was no right of appeal, the Attorney-General sought an advisory legal opinion from the Court of Appeal to clarify the elements of the offence of misconduct in public office. On 7 April 2003 the Court of Appeal ([2005] QB 73) confirmed the trial judge’s view that the relevant test for recklessness was a subjective one (R. v. Cunningham [1957] 2 QB 396, at 399 and R. v G. [2004] I AC. 1034, § 41):
“There must be an awareness of the duty to act or a subjective recklessness as to the existence of the duty. The recklessness test will apply to the question whether in the particular circumstances a duty arises at all as well as to the conduct of the defendant if it does. The subjective test applies both to reckless indifference to the legality of the act or omission and in relation to the consequences of the act or omission.”
The Court of Appeal went on to give guidance on prosecuting the offence of misconduct in public office:
“There must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. 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. A mistake, even a serious one, will not suffice.”
The ingredients of the offence were defined as follows:
“(1) a public officer acting as such (2) wilfully neglects to perform his duty and/or wilfully misconducts himself (3) to such a degree as to amount to an abuse of the public’s trust in the office holder (4) without reasonable excuse or justification. As with other criminal charges, it will be for the judge to decide whether there is evidence capable of establishing guilt of the offence and, if so, for the jury to decide whether the offence is proved.”
6. Disciplinary proceedings against the five officers
The PCA proposed the pursuit of neglect of duty charges against the five officers. On 30 September 2002 the “chief officer” (Chapter IX of the Police and Criminal Evidence Act 1984 - “PACE”), Deputy Chief Constable Clark of Humberside police, issued a decision that such charges would not be pursued. While there had been a neglect of duty, disciplinary charges were not warranted as there was no causal link between that neglect and Mr Alder’s death. While PS Dunn had not complied with his duties as a custody officer, DCC Clark recommended that he should be admonished since he had been already suspended for four years and since he had been acquitted after trial on the same evidence. The IPCC later described this decision as being “as significant for what it omits as for what it includes.”
The PCA disagreed with the reasoning and conclusion of DCC Clark by letter dated 30 October 2002. The question was not whether the five police officers were aware that they should have behaved differently but disciplinary neglect would be established if they had failed to meet a standard of care that the public could reasonably expect from them. As regards the recordings in the custody suite, the PCA was struck by the lack of ordinary humanity with which the officers failed to respond to Mr Alder lying inert on the floor:
“They show no interest in him or his welfare; they assure themselves he is faking when they have no evidence of this; they focus entirely upon ‘processing’ him. They needed no special expertise to attempt to rouse him or to focus on his welfare or to at least attempt to place him in the recovery position”
The PCA therefore issued a notice under section 93(3) of PACE directing that disciplinary charges be brought against the five officers. On 28 January 2003 they were officially charged with failing to carry out their duties with due promptitude and diligence (failing to take steps to ascertain whether or not Mr Alder’s apparent unconsciousness was genuine or to direct others to do so or otherwise to safeguard his medical well being). While the PCA had asked for a further charge concerning the failure to cover Mr Alder (he was half naked and doubly incontinent), no such charge was retained. DCC Clark decided to deny all parties legal representation: this meant that the lay tribunal would not have legal assistance and, further, that the highest possible sanction would be a fine, reprimand, a caution or none at all. It was also decided that the disciplinary tribunal would comprise a single officer (DCC Clark). Subsequently, a new police officer succeeded DCC Clark in office and as “chief officer”: however, the new officer withdrew from the disciplinary tribunal since the hand-over notes from DCC Clark included a view that “the officers had suffered enough”.
In May 2003 Chief Constable Price was appointed to sit as the disciplinary tribunal. The disciplinary hearing began on 19 June 2003. Despite the decision on legal representation, the defendants were assisted by police union representatives. The charges were prosecuted by a Humberside police officer. The applicant was by law not allowed to attend. For security reasons (press coverage and death threats received) the time and location of the tribunal hearing were not made public.
On 24 June 2003 the charges were dismissed at the close of the prosecution case, after submissions had been made by the defendants but before the defence had officially begun to put its case. As to whether the five officers were neglectful of the applicant, Chief Constable Price found:
“When we see the video we see for 11 minutes Mr Alder and lying on the floor of the custody suite and it is easy to see how that can he interpreted in so many ways. If we accept the care the officers have taken bringing Mr. Alder into the custody suite, the care in which they placed him down, does that suddenly become uncaring in that he’s left there or can we argue that he is in a safe position in a safe place where he is under potentially (sic) supervision and at least observation at all time. I know that in the hospital for example or indeed had he been taken to an observational cell he would have been left alone for probably 15 minutes between observations by either the medical practitioner, had it been the hospital, or by the custody staff had it been the police station. To me it has not been shown beyond reasonable doubt that the actions and inactions or the officers amounted to neglect. It is also very arguable that because of the very, very recent treatment that Mr Alder had had at the hospital, that they had good cause for their lack of action.”
As to the conduct of the custody officer specifically, Chief Constable Price found:
“I think this was a case where the person was drunk and treated for head injury and declared fit and was acting as if he was drunk. It is argued that Sergeant Dunn should have independently checked if he had doubts, but I must emphasise again Mr. Alder had travelled only 5 minutes from hospital where he had been examined for over an hour. It would he most unfair to judge this an error on his part rather than the hospital’s. As for the play-acting suggestion that could have been tested but when taken in the overall sequence of events seems plausible and given Mr. Alder’s previous aggressiveness the temptation to allow him to continue sleeping must have been great with the added assurance of a professional medical “okay”. Again looking at the 11 minutes on video we may question the issue of leaving Mr Alder in the condition that he was in for that period but again as with the other officers if this was a safe place and a safe position then I think we cannot prove beyond reasonable doubt that there was neglect in connection to the leaving for that period”.
A similar conclusion was reached in relation to the remaining four officers. The disciplinary charges were dismissed against all five officers.
Since they had been acquitted of both the criminal and disciplinary charges, no further sanction could be retained against them.
7. Review by the IPCC
On 20 April 2004 the Home Secretary required the newly formed IPCC to undertake a review of the events leading up to and following the death of Mr Alder. This was not a re-investigation. The review was chaired by the Chairman of the IPCC. On 27 February 2006 the IPCC issued its report, which runs to over 400 pages plus comprehensive appendices. None of the five officers agreed to be interviewed by the IPCC. The IPCC conclusions on certain issues are summarised below.
(a) As to the nightclub, the arresting officers did not attempt to speak to Mr Alder. They adopted a conclusion that he was “well in drink” which never entirely left their frame of analysis despite information from a hospital nurse to the effect that he was not excessively drunk. They began making adverse assumptions from their earliest contact with him to the effect that his state and behaviour were voluntary or self-induced and, although he was a victim at that point, the possibility that his behaviour was induced by a severe blow to the head was not entertained by the officers.
(b) As regards the hospital, the behaviour of Mr Alder must have been difficult and challenging for the hospital and the officers. However, they should be used to dealing with complex and aggressive patient presentation. The IPCC took issue with PC Dawson making inquiries about whether Mr Alder was fit for detention when he had not used violence against anyone and clearly appeared to be suffering from a number of medical difficulties. Indeed the arresting officers behaved in the hospital as though Mr Alder was already in their custody: they took him to the toilet and used force to eject him even though no one had asked them to do so. The conflict of evidence as to Mr Alder’s exit from the hospital between the hospital staff (Mr Alder had been dragged out) and the arresting officers (Mr Alder had walked out) was resolved by the IPCC in favour of the hospital staff. The IPCC also rejected PC Dawson’s statement that he had told Mr Alder that he would only be arrested if he remained in the car park of the hospital until the police van arrived. Both findings indicated that the arresting officers were not telling the truth which suggested an element of collusion between them to present their actions in the best possible light. The IPCC concluded that Mr Alder was most probably arrested soon after he was ejected from the hospital because he was argumentative with the arresting officers and those officers wished to justify his arrest by a risk of trouble in the hospital.
(c) While CS gas had been threatened, there was no evidence it was used.
(d) As to the van journey, the IPCC found that there was no evidence that Mr Alder was assaulted by the arresting officers and the IPCC opined that he had not been assaulted. A/PS Ellerington (who drove the van) was new to the shift and was not a personal friend of the arresting officers so he was not likely to be motivated to cover up any of their actions. There was no material evidence that Mr Alder had been assaulted in the police van and the arresting officers did not assault him in the custody suite.
(e) As regards the police station, the IPCC found that the arresting officers’ negative views of Mr Alder (notably that he was pretending) were immediately communicated and accepted without question by their colleagues. Subsequent events indicated that Mr Alder was not pretending and the arresting officers were positively misleading about this. Moreover, their view ignored real and immediate evidence including: that his behaviour at the police station (inert) was wholly different than at the hospital (where he was loud and vocal); that he was doubly incontinent which suggested a dramatic loss of control; that the arresting officers were informed that he was not excessively drunk and they knew he had urinated at the hospital only minutes previously (relevant to later incontinence); that he was wholly irresponsive and not reactive to any stimulus even when laid face down on a hard floor with his trousers down. Indeed, the explanation of Mr Alder’s pretence was, itself, a form of justification for the arrest as the arresting officers were, in effect, pointing out to the custody officer that Mr Alder was a trouble maker.
Turning to the custody officers, the IPCC noted that PC Barr’s argument that he did not wish to rouse Mr Alder for security reasons did not tally with his being handcuffed (initially) and face down on the floor. PC Barr’s suggestion that he thought Mr Alder was sleeping was inconsistent with his later exclamation that “he’s not making those noises anymore”. As regards the custody officer, the IPCC concluded that he had simply not complied with the duty of the care (notably to involve a medical officer) which he owed to every detained person under his control. While Mr Alder had indeed just come from hospital, that officer failed to take sufficient steps to establish whether Mr Alder had been in the same inert state at hospital, despite comments by the arresting officers to the contrary.
The IPCC noted that an analysis of the actions or inaction of the officers in the custody suite did not convey the inescapable sense of shock of almost everyone who had watched the recording. The indifference to the plight of Mr Alder on the floor and
“the cynical dismissal of his obvious distress, is simply disgraceful. All of the arguments and hearings that took place have, in my view, clouded this simple truth”.
The arresting officers behaved in a “lazy, cynical and complacent way” and they were (particularly PC Dawson) “less than fully frank in their explanation of the events and their reactions in order to justify their position”. As to the body of medical opinion, the IPCC commented that, notwithstanding questions of legal certainty, a chance of survival had been denied to Mr Alder by the actions and inactions of the police.
(f) As to the racism allegations, the IPCC determined that racism was a factor in Mr. Alder’s treatment relying on the Report of the Inquiry into the death of Stephen Lawrence (a young black man killed in East London) chaired by Sir William Macpherson of Cluny, published in February 1999. The IPCC considered whether there was an unexplained difference of treatment, in the context of a difference in race. The IPCC criticised the inappropriate and unacceptable language used by the various officers. While there was no evidence of overt use of racist language in the custody suite and directed at Mr Alder, the making of monkey noises (at 23.52 on 31 March 1998 concerning a woman who was drunk and at 05.45 while Mr Alder’s body was still in the custody suite) together with the discussion about banana boots and masks with slits indicated a further level of “unwitting racism” that ought to have been entirely absent. The custody sergeant on duty should have appreciated, even in 1998, that making monkey noises as a form of joke had the potential to be offensive and was likely to be perceived as racist and offensive whether or not it was intended to be insulting to any particular individual and the IPCC found it difficult to accept that police officers did not know the connotations of these sounds. At least one “crank” call was also found to have been made by PC Barr at 01.45 on 1 April (hours before Mr Alder’s arrival) to another police station in Hull pretending to be a local newspaper and enquiring about deaths in custody.
Taken together the acts of the officers amounted to a pattern of “processes, attitudes and behaviour which amount to discrimination” which pattern included: the assumption at the nightclub and the hospital that Mr Alder was under the influence of drugs or alcohol and the persistence of this view despite evidence to the contrary, while the effects of the head injury were not given sufficient weight; the willingness to believe that he was unhurt despite having been severely struck; the willingness to attribute the problems to his “bad attitude” rather than to any physical injury to him; the suggestion prior to his death in the custody suite that he was “mentally ill”; the reluctance to touch or rouse him once at the police station; the language used (that he was coloured and of negroid appearance); and the monkey imitations, the reference to a hood with slits and banana boots none of which were directed to Mr Alder, yet all of which showed an alarming potential threat.
While it was understandable how Mr Alder’s behaviour contributed to this situation, it was concerning as to how easily it occurred. The executive summary of the IPCC report noted that, while it could not say for certain that Mr Alder would have been treated more appropriately had he been white, “the fact that he was black stacked the odds against him”.
(g) The conduct of the murder investigation (Humberside police) and death in custody investigation (West Yorkshire police) was criticised. The Humberside team were allowed to take too much of the initiative and the West Yorkshire team relied too heavily upon them which led to an absence of a proper forensic strategy and the tendency either to rely on Humberside or carry out non-priority work.
The West Yorkshire Police were not sufficiently independent. While there had been changes in the law since 1998 designed to, inter alia, remove the involvement of external or nearby police forces in the investigation of other police forces, in the present case it appeared to amount to one senior officer calling in a favour from his opposite number in another force and one Yorkshire force investigating another Yorkshire force.
As to the adequacy and effectiveness of the West Yorkshire investigation, the IPCC regretted that the SIO had no prior experience in leading a death in custody inquiry and criticised the understaffing of the investigation (with, in addition, the SIO and one Inspector taking holidays early in the investigation). The inadequate size of the team also compromised the independence of its investigation as the West Yorkshire police had to rely heavily on the Humberside police murder investigation. Rather than operating transparently separately, the Humberside and West Yorkshire forces worked so closely together that they gave the impression that they were paying lip service to the notion of independent scrutiny.
The IPCC also criticised the late interviewing of officers central to the death in custody inquiry. It also criticised the decision to return the arresting officers’ clothing on 3 April 1998: while the clothing was returned before watching the recording of the events in the custody suite, that return was, in any event, unjustified given the assumptions it implied in favour of the officers. That return also denied the opportunity to determine definitively whether CS gas had been used. Mr Alder’s clothing, destroyed on 22 July 1998, would also have been relevant as regards the use of CS gas, a possible second assault and the cause of his loss of unconsciousness. None of the officers had submitted to a medical examination and the matter was not followed up at any stage. While interviews of the officers were thought out, there were a number of questions that were not asked and no adequate consideration was given to follow-up interviews. The IPCC criticised the family liaison conducted by both investigation teams which undermined the confidence of the family in the inquiry as a whole.
(h) The decision by Humberside police not to pursue disciplinary charges attracted the “gravest misgivings”. DCC Clark, while demonstrating loyalty to the officers under his command, failed in his judgment. By limiting the disciplinary process, DCC Clark ensured that his view of the case could not be effectively reversed even though the PCA had forced the hearing to go ahead. The IPCC also found that the disciplinary tribunal (Chief Constable Price), unassisted by legal advice, made significant errors in the conduct of the hearing and, notably, in allowing the Police Federation representative to introduce defence evidence while making submissions of no case to answer on behalf of the five officers: the tribunal failed to appreciate that the correct test at that point was not whether the case was proven beyond reasonable doubt, but rather whether a prima facie case had been made out by the prosecution.
8. Civil Proceedings
On 19 December 2002 civil proceedings were issued on behalf of Mr Alder’s sons (teenagers at the time of his death) and on behalf of his estate. The applicant only retains limited information about these proceedings. The civil claim alleged common law assault and/or battery, false imprisonment, negligence, misfeasance in public office and breaches of the Race Relations Act 1976. The defendants were the Chief Constable of Humberside, the Chief Constable of West Yorkshire, and the five officers. Claims under the Human Rights Act 1998 were not pursued since Mr Alder died before the Act entered into force. The claim against the West Yorkshire police (the conduct of their investigation) was not pursued, the House of Lords having established in the meantime that common law negligence did not encompass an unreasonable failure to investigate crime (Brooks v. Commissioner of the Metropolitan Police [2005] 1 WLR 1495). The claim originally issued against the PCA and the CPS was not pursued. On 19 March 2007 the applicant was informed that those civil proceedings had been settled on a confidential basis and without an admission of liability.
In the meantime, the applicant issued civil proceedings in her own right on 19 February 2003 against the same above defendants as well as the PCA and the CPS. Those claims were struck out or not proceeded with during the intervening years and were finally disposed of in December 2005.
B. Relevant domestic law and practice
1. Inquests
Section 8(1) of the Coroners Act 1988 (“the 1988 Act”) provides for a duty to conduct an inquest where a body lies in the district of the Coroner and there are grounds to suspect that the person (a) has died a violent or an unnatural death; or (b) has died a sudden death of which the cause is unknown. The inquest is to determine the identity of the deceased, and how, when and where he came by his death (section 11(5((b) of the 1988 Act).
The Coroners Rules 1984 limit the extent to which an inquest can accord blame to individuals for wrong doing or otherwise ascribe specific responsibility for death. Rule 36 of the 1984 rules requires that proceedings be directed solely to ascertaining (a) who the deceased was; (b) how, when and where he came by his death; and (c) the particulars required to register the death. Neither the coroner nor the jury shall express any opinion on any other matters. Rule 42 also provides that no verdict shall be framed in such a way as to appear to determine any question of criminal liability on the part of a named person or civil liability.
2. Criminal law
Gross negligence manslaughter was defined in R v. Adomako ([1995] 1 AC 171 at 187B) as follows:
“... the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the Jury must go on to consider whether that breach of duty should he characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant’s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that is should be judged criminal.”
The ingredients of gross negligence manslaughter were summarised in R v. HM Coroner for Southwark ex parte Lisa Douglas-Williams ([1999] l. All ER 344 at 350) as follows:
“For gross negligence manslaughter ... there must be: (i) negligence consisting of an act or failure to act; (ii) that negligence must have caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death; and (iii) the degree of negligence has to be such that it can be characterised as gross in the sense that it was of an order that merits criminal sanctions rather than a duty merely to compensate the victim”.
The case of R v. Cunningham ([1957] 2 Q.B. 396, at 399) described the test for recklessness in the crime of misconduct in public office as follows:
“(a) an actual intention to do the particular kind of harm that in fact was done; or (b) recklessness as to whether such harm should occur or not (ie. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).”
Criminal liability from reckless behaviour was also discussed in R v. G ([2004] 1 A-C. 1034). That case dealt with the mens rea for criminal damage in circumstances where children had acted without giving adequate consideration to the outcome of actions likely to endanger property. Lord Bingham of Cornhill held that the Caldwell test for recklessness (identified in R v. Caldwell [1982] AC 341, HL) had focused upon risks that would have been obvious to the ordinary reasonable bystander. In R v. G the House of Lords departed from its original Caldwell test and defined the new test for recklessness under section 1 of the Criminal Damage Act 1971:
“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.”
3. Police disciplinary proceedings
At the relevant time, the complaint system in force was contained in Part IX of the Police and Criminal Evidence Act 1984 (“PACE”).
Section 83 of PACE established the PCA and Schedule 4 provided the body with independent status in the sense that none of its members were allowed to be persons who were or had been a serving police constable.
There were two types of procedure: one which was supervised by the police force to which the complaint had been made and one supervised by the PCA. Under Section 87(1)(a) of PACE a complaint had to be referred to the PCA if it was alleged that it had resulted in death.
The powers of the PCA in the context of a supervised complaint included a power of veto over the investigating officer (section 89(4)(a) and (b)) and a power to issue directions concerning the terms of the inquiry (section 89(5)). At the end of the investigation, the PCA was required to issue a memorandum of its satisfaction as regards the investigation (section 89(7)). Upon receiving the decision to bring criminal or disciplinary charges or not, the PCA could (section 93(3)) nevertheless direct the senior officer to bring charges. Section 93 of PACE provided as follows:
“(1) Where a memorandum under section 90 above states that a chief officer of police has not preferred disciplinary charges or does not propose to do so, the [PCA] may recommend him to prefer such disciplinary charges as they may specify.
(2) Subject to subsection (6) below, a chief officer may not withdraw charges which he has preferred in accordance with a recommendation under subsection (1) above.
(3) if after the [PCA] have made a recommendation under this section and consulted the chief officer he is still unwilling to prefer such charges as the Authority consider appropriate, they may direct him to prefer such charges as they may specify. ...
(5) Subject to subsection (6) below, it shall be the duty or a chief officer to prefer and proceed with charges specified in such, a direction.
(6) The [PCA] may give a chief officer leave-
(a) not to prefer charges which section 90(10) above or subsection (5) above would otherwise oblige him to prefer; or
(b) not to proceed with charges with which section 90(10) above or subsection (2) or (5) above would otherwise oblige him to proceed.”
Section 102 of PACE provided that, when the “chief officer” determined that the sanction could be dismissal, the requirement to resign or reduction in rank, legal representation would be permitted. The 1985 Regulations allowed the disciplinary tribunal to have legal advice only when the parties were legally represented. The 1985 Regulations also provided for a range of disciplinary offences including “neglect of duty”, defined as follows:
“Neglect of duty, which offence is committed where a member of a police force, without good and sufficient cause - (a) neglects or omits to attend to or carry out with due promptitude and diligence anything which it is his duty as a member of a police force to attend to or carry out. ...”
Two published reports later recommended changes in the police complaints and disciplinary system: the Report of House of Commons Home Affairs Select Committee (published on 16 December 1997) and The Report to the United Kingdom Government on the visit to the United Kingdom and the Isle of Man carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) in September 1997, published in January 2000.
Amendments to the Police Act 1996 came into force on 1 April 1999 and, inter alia, lowered the standard of proof and created fast track systems to offset delay. The Police Reform Act 2002 came into force on 1 April 2004: the PCA was replaced by the IPCC. The IPCC has added powers and resources as regards investigations of complaints and management of investigations by other police forces. If the investigation is directed by the IPCC itself, the IPCC can present the case before the disciplinary tribunal and, otherwise, the IPCC is represented before that tribunal. There is also a new entitlement for interested parties and friends to attend the hearing, and for complainants to appeal against the outcomes.
4. Civil causes of action
(a) Discrimination
It was possible to bring an action against the police under the Race Relations Act 1976 (“the 1976 Act”) in respect of racial discrimination if the claim fell within the provisions of the 1976 Act and, in particular, within section 20 which dealt with the provision of services to the public or a section of the public. The Court of Appeal held (Farah v. Commissioner of Police of the Metropolis [1997] 2 WLR 824) that only those parts of a police officer’s duties involving assistance to or protection of members of the public amount to the provision of services to the public for the purposes of section 20(1) of the 1976 Act.
The Report of the Inquiry into the Death of Stephen Lawrence (in April 1993) chaired by Sir William Macpherson of Cluny of February 1999 made several observations and recommendations. This Report defined racism in general terms:
“Racism ... consists of conduct or words or practices which disadvantage or advantage people because of their colour, culture, or ethnic origin. In its more subtle form it is as damaging as in its overt form.”
The Report defined the notion of “unwitting racism” as follows:
“Unwitting racism can arise because of lack of understanding, ignorance or mistaken beliefs. It can arise from well intentioned but patronising words or actions. It can arise from unfamiliarity with the behaviour or cultural traditions of people or families from minority ethnic communities. It can arise from racist stereotyping of black people as potential criminals or troublemakers. Often this arises out of uncritical self-understanding born out of an inflexible police ethos of the traditional, way of doing things. Furthermore such attitudes can thrive in a tightly knit community, so that there can be a collective failure to detect and to outlaw this kind of racism.”
The Report also defined “institutional racism” as follows:
“The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.”
On 30 November 2000 the Race Relations (Amendment) Act 2000 received Royal Assent. The aim of this Act is to bring about changes to the 1976 Act by allowing persons to bring proceedings in respect of racially discriminatory acts by, inter alia, the police in carrying out their public duties of law enforcement and investigation and to bring proceedings against the chief officers of police for acts of racial discrimination by officers under their command. This Act has no retrospective effect.
(b) Causes of action in damages in respect of a person’s death
(i) The Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(1) provides:
“If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”
This statutory right of action is reserved to the deceased’s dependants. If there are no dependants, there is no pecuniary loss to recover as damages.
(ii) The Law Reform (Miscellaneous) Provisions Act 1934 provides for the survival of causes of action for the benefit of the deceased’s estate. The relevant part of section 1(1) provides:
“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.”
This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died, including any non-pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death. Where death is instantaneous, or where it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act and the only recoverable amount would be funeral expenses.
COMPLAINTS
The applicant complains, on her brother’s behalf, under Articles 2, 3 and 14 of the Convention, about his death in police custody on 1 April 1998.
In the first place, she complains that the substantive guarantees of Article 3 were violated in that the actions and inactions of the police officers at the police station constituted inhuman and degrading treatment in two respects. While the medical evidence may not show beyond a reasonable doubt that inaction (failing to place him in a recovery position, check his airways and administer basic first aid) caused his death, that inaction aggravated his medical condition and exacerbated the speed of his demise. In addition, the actions and inactions of the officers showed a flagrant disregard for Mr Alder’s basic human dignity which grossly humiliated and degraded him before others and severely undermined his dignity as a human being in the last minutes of his life in a grave and irredeemable fashion.
Secondly, she complains of a breach of the procedural guarantees of Article 3 since none of the officers received a criminal or disciplinary sanction or were even obliged to account for their action/inactions. She criticises the subjective test applied to the criminal charges. A civil remedy would not fulfil the State’s procedural obligations under this Article. The disciplinary system had structural shortcomings including a lack of independence and effectiveness, the applicant taking issue notably with the PCA (especially, its limited powers) and with the presiding officer of the disciplinary tribunal (as regards the role/multiple powers of such an officer as well as the conduct of the disciplinary hearing and reasons for dismissing the charges). The applicant makes no criticism of the inquest but notes that it had no power to apportion responsibility or guilt.
Thirdly, she complains about a violation of the substantive guarantees of Article 2 of the Convention. While she accepts that the medical evidence prevents her from being able to show beyond reasonable doubt that the inaction of the police officers (failure to place her brother in the recovery position, to check his airways or administer basic first aid) cost his life, she maintains that these failures constitute, in the alternative to a breach of Article 3, a breach of Article 2 of the Convention.
Fourthly, she maintains that the conduct of the death in custody and murder investigations did not fulfil the procedural requirements of Article 2 of the Convention. She makes extremely detailed submissions about those investigations arguing essentially that the West Yorkshire death in custody investigation lacked the necessary independence (structural and operational) and promptitude and was inadequate and ineffective and that those deficiencies irrevocably undermined the possibility of the experts to reach satisfactory conclusions about the medical issues in the case. She relies to a considerable extent (but not entirely) on the findings of the IPCC.
Finally, the applicant complains under Article 14, in conjunction with Article 3, that the inhuman and degrading treatment of Mr Alder was in part caused by discrimination on grounds of his race and colour. She again relies to a considerable extent (but not entirely) on the findings of the IPCC.
QUESTIONS TO THE PARTIES
In particular, did the relevant police officers present in the custody suite at Hull Queen’s Garden Police Station where Mr Alder was in custody, know or ought they have known of the existence of a real and immediate risk to his life and did they fail to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 47-64, ECHR 2002 II)?
In particular, was the investigation of Mr Alder’s death effective and independent (Paul and Audrey Edwards v. the United Kingdom, §§ 69-73-64, ECHR 2002 II)?