CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 14 décembre 2010

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9DAED311 { width:4.99pt; text-indent:0pt; display:inline-block } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF3B96856 { width:11.87pt; display:inline-block } .s51F2D829 { width:208.44pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 42078/02 by Janet ALDER against the United Kingdom The European Court of Human Rights, sitting on 14 December 2010 as a Chamber composed of:   Ljiljana Mijović, President,   Nicolas Bratza,   David Thór Björgvinsson,   Ján Šikuta   Ledi Bianku,   Mihai Poalelungi,   Vincent A. de Gaetano, judges and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged with the European Commission of Human Rights on 30 September 1998, Having deliberated, decides as follows: THE FACTS 1.     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 2.     The facts of the case, as submitted by the parties, may be summarised as follows. It concerns the death of the applicant’s brother, Mr 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 3.     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”. 4.     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, he registered 14 out of 15 on the Glasgow Coma Scale (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. His erratic behaviour rendered his admission and management difficult. 5.     The arresting officers arrived at the hospital at or around 03.05 and noted Mr Alder’s behaviour and the medical staff’s difficulties. At one point, Mr Alder got up to go to the toilet, then collapsed on the floor and 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 to the police officers and somewhat incoherent. 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 erratic 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. 6.     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, it was recorded that the arresting officers drove in the police car behind the van. 7.     After a five-minute journey, the van arrived at Hull Queen’s Garden police station at approximately 03.46 (“Humberside police station”). 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. 8.     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. 9.     The applicant submitted, inter alia , recordings of Mr Alder being carried down the corridor and being placed on the floor and subsequently dying in the prisoner/reception area of the custody suite as well as a timeline of relevant events in the custody suite. 10.     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. The arresting officers were present throughout. All persons circulated around the work counter just beside Mr Alder. 11.     At 03.46.52 Mr Alder was placed by the arresting officers on the floor of the prisoner reception area of the custody suite (just in front of the charge desk). His body was inert, his hands were handcuffed behind his back and he was placed 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 and he was doubly incontinent. From arrival, his breathing was audibly slow and extremely laboured. 12.     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 and PC Blakey added that the hospital would not have him and that Mr Alder was “right as rain”. PC Dawson went on to say that Mr Alder was “acting”, PC Blakey adding that it was “a show”: both repeated this point of view. 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 discussed around the work counter the charging of Mr Alder (for breach of the peace or a minor public order offence), 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 at him. Apart from taking off the handcuffs, no one touched Mr Alder during the relevant time. 13.     At 03.57.17 PC Barr looked over the counter. 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 that he was not breathing. 14.     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. 15.     At some stage immediately thereafter, the arresting officers left the custody suite and made notes of what had taken place. They were not required to do this separately and their notes were countersigned at the same time at 04.45. 16.     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 Humberside police murder investigation (1 April - 29 April 1998) and the West Yorkshire police death-in-custody investigation (1   April –August 1998) 17.     Between 06.00 and 07.00 on 1 April 1998 a murder investigation into 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. 18.     The Humberside murder investigation included the designation of the relevant site at the night club as a crime scene as well as the taking of photographs and swabs from that site. Mr Alder’s tooth was found. The custody area and the police van were designated as crime scenes. Photographs and swabs were taken of the van and the van was examined for fingerprints. A forensic scientist examined the van. That scientist also examined the custody suite and the tape from the custody suite was given to the investigating officers. Mr Alder’s flat was searched. A family liaison officer was appointed (this role being handed over to the West Yorkshire police investigation on 29 April 1998).   By the end of this investigation 237   formal statements had been taken, 461 actions generated and 6,000   documents identified. It was closed when the first pathologist formally reported that the blow to Mr Alder’s head had not caused his death (paragraph 26 below). The computerised record of the investigation was handed to the West Yorkshire police during the Humberside investigation and after it had ended, as well as being made available to the IPCC during its review. 19.     Humberside police also contacted the Police Complaints Authority (“PCA”) in the early hours of 1 April 1998 given the death in custody. Chief Inspector Beckett (Humberside Police Discipline and Complaints Department) later 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 (“handy logistically”) and so as to return a favour owed to Humberside police. The 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. 20.     Further to notification by Humberside police, Dr Clark (a Home Office pathologist appointed by the Coroner) observed the body in situ at 10.15 on 1 April. He carried out a post-mortem examination at 17.00 on 1   April in the presence of the West Yorkshire SIO and the Coroner. 21.     Mr Paul, having heard about Mr Alder’s death, voluntarily attended the police station 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, which appeared to indicate that the blow to Mr Alder’s head in the nightclub had not caused death, Mr Paul was de-arrested for murder and charged with causing grievous bodily harm with intent. 22.     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”. 23.     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. 24.     On 8 April 1998 “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. On 30 April these officers were suspended from duty. No notice was served on PC Wildbore. 25.     The five officers were interviewed by the West Yorkshire police in mid-May 1998. 26.     On 29 April 1998 the pathologist (Dr Clark) met with the Humberside and West Yorkshire investigation teams and outlined his full findings including the cause of death (“a combination of respiratory failure and cardiac failure, a combination of the two”). It was at this point that the Humberside police investigation effectively ended. 27.     On 13 May 1998, the pathologist (Dr Clark) sent a summary post-mortem note to the West Yorkshire SIO which indicated that Mr Alder had not suffered any significant physical injuries other than those recorded by the paramedics at the nightclub. The full post-mortem examination report of 27 May 1998 found that the assault injuries on Mr Alder had not caused or contributed to Mr Alder’s death but had 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 had 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.” 28.     He described it as “impossible to know” whether medical treatment at the police station would have changed the outcome. 29.     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 suggested 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 whether prompt medical treatment “might have affected the outcome”. 30.     On 30 June 1998 the West Yorkshire police sent an investigation report 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. 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 of the police in the custody suite had “materially contributed” to the cause of Mr Alder’s death. The PCA requested a number of additional matters to be investigated, so that 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. 31.     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. 32.     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 (3 July-24 August 2000) 33.     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, the Chief Constable of Humberside Police, the Local Health authority and the Ambulance Trust were represented by Counsel. 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   medical experts. A further 38 witness statements were read. The five officers exercised their right not to answer any questions that would incriminate them in light of the outstanding criminal charges: the Coroner advised the jury not to hold this against the officers. 34.     The transcript of the Coroner’s summing-up ran to 280 pages and took three days. 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. 35.     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: “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 [the] 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 [State Pathologist for Northern Ireland] 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?” 36.     As to 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.” 37.     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 of 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 38.     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. 39.     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, noting that it was a “model of clarity”. In particular, he noted the summing up of the medical evidence and the fact that the evidence of Professor Crane alone would have enabled the jury to find causation proved to the criminal standard and that 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 proved to the criminal standard. 5.     The criminal proceedings (15 April-11 June 2002) 40.     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. 41.     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: “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”. 42.     On 24 October 2001 the CPS decided that it was now of the opinion that there was sufficient evidence to justify a count of manslaughter and formal notification was given a number of days later. In March 2002 the trial judge agreed 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. 43.     The criminal trial of the five officers took place between 15 April and 21 June 2002. The CPS funded the attendance of the Alder family and an advisor at the trial which was to take place in a different city. The CPS also funded a barrister whose task, as part of the prosecution team, was to represent the interests of the family. 44.     The medical experts who had debated the causation issue over the previous four years gave evidence, including all expert witnesses consulted by the CPS. 45.     On 21 June 2002, at the close of the prosecution case, the trial judge dismissed both charges, not leaving either to go before the jury. 46.     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.” 47.     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. 48.     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. All of the officers were acquitted and their suspension was lifted. 49.     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. 50.     On 7 April 2004 the Court of Appeal ([2004] EWCA 3) 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) and defined the ingredients of the offence 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 51.     Following a misconduct review, 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 stating that, having received legal advice, disciplinary charges would not be pursued. In order to establish disciplinary neglect it was required to show that an officer was aware that he could have done more and chose not to. While the officers had been in breach of their duty of care amounting to a neglect of their duty, the extent of their neglect did not amount to neglect deserving of a disciplinary charge against them, but it did require remedial action by way of training and guidance. While PS Dunn had not complied with his duties as a custody officer, DCC Clark recommended that he should be admonished since he had already been suspended for four years and since he had been acquitted after trial on the same evidence. DCC Clark also dismissed the issue of racism on the basis of an expert analysis of the evidence. The IPCC later described DCC Clark’s decision as being “as significant for what it omits as for what it includes.” 52.     By letter of 30 October 2002 the PCA replied and disagreed with the reasoning and conclusion of DCC Clark, the IPCC later describing the PCA response as a “scathing critique ... pointing out the omissions and inconsistencies in the document”. The PCA noted that 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.” However, the PCA agreed with DCC Clark that the audio evidence (references to banana boots/boats and possible monkey noises) did not demonstrate a racist attitude on the part of the officers. 53.     The PCA therefore issued a notice under section 93(3) of PACE directing that disciplinary charges be brought against the five officers. 54.     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). Despite the PCA recommendation, no further charge about the failure to cover Mr Alder was retained. DCC Clark also decided to deny all parties legal representation: this meant that the tribunal would not have legal assistance and, further, that the highest possible sanction would be a fine, a reprimand or a caution. 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”. 55.     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 not entitled to attend, as the then regulations provided that the hearing would be in private unless the “charge is in respect of a complaints matter” and Humberside police took the view that the applicant was not a complainant. For security reasons (press coverage and death threats received) the time and location of the tribunal hearing were not made public. Given the absence of legal representation, both sides were allowed to submit written legal presentations. 56.     The hearing began on 19 June 2003 and lasted 4 days. The officers’ submission that the disciplinary hearing was an abuse of process was rejected by Chief Constable Price, who was at that point only legally advised. The presenting side’s opening remarks were then read out followed by written statements on behalf of the presenting side. At that point, the police officers’ representative (from the Police Federation) made a submission of no case to answer.   On 24 June 2003 Chief Constable Price dismissed the charges applying a criminal standard of proof of beyond all reasonable doubt. He later accepted before the IPCC that this ruling was incorrect, expressing frustration at the lack of legal representation. 57.     As to whether the five officers had been neglectful of the applicant, Chief Constable Price found as follows: “When we see the video we see for 11 minutes Mr Alder 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 of 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.” 58.     As to the conduct of the custody officer specifically, Chief Constable Price found as follows: “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 be 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”. 59.     A similar conclusion was reached in relation to the remaining four officers. The disciplinary charges were dismissed against all five officers. 60.     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 61.     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. One of its terms of reference was to emit a view as to whether or not the approaches taken at the criminal or disciplinary proceedings may, or may not, have been different had the investigation been conducted in a different way. 62.     On 27 February 2006 the IPCC issued its report, which runs to over 400 pages plus comprehensive appendices. The IPCC conclusions on certain issues are summarised below. 63.     None of the five officers agreed to be interviewed by the IPCC. The IPCC noted their statements and interviews during the investigation: it did not criticise their exercising the right not to incriminate themselves at the inquest (a legal entitlement) and it accepted that they had not been called upon to give evidence at trial or at the disciplinary hearing since both hearings ended before the defence stage arose. However, the IPCC considered that they had a clear duty to cooperate with the IPCC review and that their failure to do so was “deeply disappointing”. 64.     As to the nightclub, the IPCC found that the arresting officers had not attempted 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. 65.     As regards the hospital, the IPCC obtained a report from the Healthcare Commission as regards the handling of Mr Alder by health care professionals during the early hours of 1 April 1998. The IPCC recognised that the behaviour of Mr Alder must have been difficult and challenging for the hospital and the officers. However, they should have been used to dealing with complex and aggressive patient presentation and the IPCC criticised his being discharged from hospital. The IPCC took issue with the fact that PC Dawson had made 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. 66.     As to CS gas, while it had been threatened, there was no evidence it had been used. 67.     As to the van journey, the IPCC found that the only reasonable conclusion that could be drawn from the evidence, given the length of the van journey, the post-mortem evidence and the forensic evidence, was that there was no assault of Mr Alder in the van by the arresting officers. 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. The IPCC considered, for various reasons, that it could not rely on the gatekeeper’s evidence to the effect that only PC Dawson emerged from the police car, which thereby suggested that PC Blakely had travelled in the van with A/PS Ellerington and Mr Alder. In addition, there was none of the material evidence that one would expect to see if an assault had occurred. 68.     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 the fact that his behaviour at the police station, where he was inert, was wholly different from that 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; 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. 69.     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 and placed 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 care 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”. The Executive Summary of the IPCC report noted as follows: “The most serious failings were by four of the police officers involved: Police Constab