Dominic Grieve defends the CPS; dodges the question

A minister finally made it to the despatch box yesterday to defend the CPS, when the Attorney General, Dominic Grieve, made a statement to the House of Commons. It was a statement containing little of any substance, and to my mind he dodged the two most important questions posed to him by MPs.

I think it’s worth quoting much of what was said; if you prefer a more macerated digested account, check out the Guardian report.

The first goes the question of the time taken by the CPS to make its decision, something I’ve commented on before. Grieve was asked about this twice, once by Emily Thornberry, and once by Diane Abbott. Thornberry’s question was simply ignored (although given she was pursuing that peculiar MP’s trick of asking six questions at once, it’s perhaps understandable!):

Emily Thornberry: Does the right hon. and learned Gentleman believe that if a member of the public had launched an unprovoked attack on a police officer that was immediately followed by the officer’s death, and if that incident was on film, a pathologist of highly dubious professionalism would have been appointed to investigate and that pathologist would have been allowed to throw away samples that could have proved the link between the assault and the death? Does he also agree that it would be highly unlikely, even if one were to leave aside the evidence in connection to the manslaughter, that there would be no action on the assault?

We have all seen the film. The man was clearly assaulted. We have also, have we not, read Nat Cary’s evidence in which he says that there is an area of bruising consistent with being hit with a baton? As Nat Cary says, if that is not ABH, what is? How can the CPS have taken 15 months to come to no conclusion? It is not going to take any action. I suggest that that would not have happened if the tables had been turned and this shows that there is no equality before the law. If the right hon. and learned Gentleman agrees, what is he going to do about it?

The Attorney-General: I should say at the outset that I think that the first part of the hon. Lady’s question is based on a slightly false premise. The appointment of a pathologist is a matter for the coroner, not for the CPS. The first pathologist appointed in this case was appointed by the coroner-he has the power to do that. The hon. Lady will be aware from what was said by the DPP and from what I said a moment ago that much flows from that appointment. It is clear that a report was produced that provided an indication to lead to further reports that looked as though it might lead to showing a causal connection between the assault and the death but that subsequently a further factual statement from the pathologist first appointed by the coroner entirely undermined the basis on which any further expert view could be taken of the case by other pathologists. That is at the root of the problem.

As for the hon. Lady’s suggestion that in some way this case would have been treated differently had it involved the death of a police officer, I have no reason to think that that is the case. It is right to say that when the matter was first drawn to the attention of Her Majesty’s coroner, it might not have been apparent at that stage-because the video evidence had not become available-that this was not a sudden death on the fringe of the G20 demonstration rather than something that was intimately linked to it, as became clear when the video evidence became available.

Having ignored the issue of the delay once, he was given another opportunity to respond by Diane Abbott:

Ms Diane Abbott (Hackney North and Stoke Newington) (Lab): Does the Attorney-General agree that a key element in upholding the rule of law is people’s confidence in the rule of law? Does he also agree that a number of issues associated with this case have tended to undermine that confidence both for the tragic Tomlinson family and for the community as a whole? The question of the pathologist’s competence has been touched on, but there is also the chequered history of the policeman involved-at one point, he was actually discharged from the Metropolitan Police Service. There is also the question of the length of time it took the CPS to finish the inquiry, which has meant that no prosecution of any kind may be brought. Does the right hon. and learned Gentleman agree that all of us in the House who are committed to upholding the rule of law have reason to be concerned about what has happened in this case?

Grieve looked like he was going to dodge the issue again, responding only to Abbott’s first point, and moving on to a question from Sir Alan Beith, but to his credit he did come back to it:

I did not fully respond to the point put by the hon. Member for Hackney North and Stoke Newington (Ms Abbott) about the timing. I simply say this: there was an IPCC inquiry first of all, which took some months. By the time the Crown Prosecution Service got the material in this case, time had already gone on a fair bit. In those circumstances, I do not take the view from what I have seen that the CPS was in any way dilatory in trying to bring this matter to a conclusion.

Not an explanation, or even an excuse. Indeed, Grieve’s statement that “…there was an IPCC inquiry first of all, which took some months” borders on the misleading; as I noted over the weekend, the IPCC sent their file to the CPS a little over four months after Ian Tomlinson died; there were two months remaining before the deadline to charge common assault.

Grieve’s perfectly correct to say that it would be wrong to charge common assault when manslaughter would be more appropriate, but even if we were to accept that the CPS was incapable of completing its file review within two months – and I find that suggestion bizarre – the fact that it took full 11 months from the IPCC passing the file over requires explanation.

The second important question which was raised was the appointment of the pathologist. Some MPs didn’t entirely seem to get the point here – notably Maria Eagle, who said:

However, is it not the case that the decision of medical authorities to charge Dr Patel, the first pathologist, with 26 counts of misconduct is materially important? The public will find it difficult to understand how the opinion of a doctor facing 26 charges of misconduct before the General Medical Council can in effect muddy the evidential waters in this very serious case to such an extent that a prosecution cannot proceed in a case where the public interest is not served, as I think the right hon. and learned Gentleman would probably agree, by such a decision.

My understanding is that Patel faced these charges after the Ian Tomlinson autopsy had been conducted, leaving Eagle essentially standing up and declaring “Post hoc ergo propter hoc!”. There had been questions raised about his conduct in other cases, as Julian Lewis noted

Dr Julian Lewis (New Forest East) (Con): Does my right hon. and learned Friend accept that the CPS might have acted with complete propriety but that its actions have nothing to do with the delivery of justice in this case? Does he understand that to allow the findings of a pathologist who has previously found a victim of the Camden ripper in 2002 to have died of natural causes resulting from heart disease to trump the considered verdicts of two other pathologists is far from satisfactory? Is he more understanding than I am of the fact that the Director of Public Prosecutions can take the view that the findings amount to an irreconcilable disagreement between experts rather than between two experts and one incompetent who ought to be disregarded?

What Lewis and others realised – but Eagle didn’t seem to – is that it’s not the charges Patel faced after the event that are the problem; the coroner’s decision to appoint Patel at all is. Mark Pritchard focused in on this and on Patel’s alleged relationship with the police force:

Mark Pritchard (The Wrekin) (Con): Is it not time that coroners were issued with new guidance that they should not appoint pathologists when there is a direct and/or present relationship with the police force they are investigating?

The Attorney-General: My hon. Friend raises an interesting question. Normally, as I understand it, that is a matter for the discretion of the coroner. It may be that one of the matters arising from this case that needs to be considered is how pathologists are appointed by coroners in all cases.

Sir Alan Beith raised a similar point:

Sir Alan Beith (Berwick-upon-Tweed) (LD): Does the Attorney-General accept that, whatever may be the normal practice, there was nothing to prevent the CPS from bringing a simple assault charge while other matters continued to be investigated? Does he also recognise that the urgency of creating a system of genuinely independent medical examiners, as recommended after the Shipman case and by the Justice Committee, is confirmed by aspects of this case?

Grieve didn’t respond to the question about independent medical examiners, and he should – it goes to the heart of the evidential problems in this case. The question of how the coroner came to appoint Patel – despite previous questions about his judgement in other cases – is an interesting one. One MP felt that the coroner’s suitability had also been undermined by his conduct towards the IPCC:

Steve McCabe (Birmingham, Selly Oak) (Lab): Is it true that the coroner, Professor Paul Matthews, refused to allow two IPCC investigators to attend the first post-mortem and failed to advise Mr Tomlinson’s family about their rights in relation to the second post-mortem? If so, how can any of us have any confidence in his ability to conduct an inquest that will have such a crucial bearing on any future decision by the CPS?

The Attorney-General: As to the latter point about the family, I am not in a position to comment. As to the first, on whether the coroner insisted that a post- mortem go ahead with Dr Patel only, I think that I am in a position to confirm that that is what he did.

I doubt this is the last we’ll be hearing about that issue.

My original question remains unanswered – why couldn’t the CPS conclude its review of the IPCC file within the two month deadline for bringing charges of common assault, and why did it take a total of eleven months to reach a charging decision?