For almost a week, they had been harbouring growing doubts about the account of his death relayed to them by police. Discouraged from speaking to journalists, and initially prevented from seeing the body, the grieving family were led to believe the 47-year-old had died of natural causes.
They had not been told about the three police witnesses who, 48 hours after Tomlinson’s death, said they had seen a colleague strike him with a baton and push him to the ground.
For five days they were denied details about the bruise and puncture marks on Tomlinson’s legs – now known to have been caused by a baton strike and dog bites – and the three litres of bloody fluid found in his stomach.
The City of London police detective superintendent running the investigation, Anthony Crampton, recorded in his log that telling the family about the injuries risked causing them “unnecessary alarm or distress”.
Tomlinson’s wife of 18 years, Julia, was told he had simply “run out of batteries”, collapsing amid a crowd of violent anarchists dressed in black who, police led her to believe, may have somehow triggered a heart attack.
The video footage she watched for the first time in the Guardian office with her son, Paul King, told a very different story. King said: “I think what we’ve seen has answered a lot of questions. And justice will be justice now.”
Three years later, the family must come to terms with the paradox of a justice system that has provided them with two contradictory verdicts. On one hand, an inquest jury took three hours to decide that Tomlinson had been unlawfully killed by a police officer. On the other, a jury in a criminal trial found the police officer – Simon Harwood – not guilty of Tomlinson’s manslaughter.
The inquest was an inquisitorial process to find a cause of death; the trial an adversarial process to apportion criminal blame. Both juries heard broadly similar evidence, which demanded the same standard of proof – beyond reasonable doubt. Yet their conclusions could not have been more different.
The decision not to convict Harwood will be taken as further indication – if ever it were needed – of the difficulty in prosecuting police officers. The evidence is already overwhelming.There have been 1,433 deaths in police custody or following contact with officers, documented by the monitoring group Inquest, since 1990, among them Jean Charles de Menezes and Mark Duggan. Not a single police officer during that period has been convicted of manslaughter. You need to go back to 1986 to find the most recent conviction – a little-known case involving Alwyn Sawyer, a sergeant who kicked and punched a drunken retired bus driver, Henry Foley, in a Southport police cell in 1986, before he died.
Len Jackson, interim chair of the Independent Police Complaints Commission (IPCC), has said that juries “quite often find it difficult to convict police officers”. The Tomlinson case certainly supports that claim but it has also revealed the failings of institutions, including the IPCC, tasked with holding police to account.
For seven days after Tomlinson’s death, the watchdog resisted calls to open a full investigation. The IPCC believes its delay in investigating the death did not alter the outcome of the inquiry, but others argue it was a failing that may even have contributed to Harwood’s eventual acquittal.
The inquiry was initially left to detectives at City of London police, which had jurisdiction over the Square Mile. The IPCC held back from independently investigating the death, even after discovering witnesses had come forward to say they had seen Tomlinson attacked by a police officer, and photographs had emerged showing the newspaper seller lying at the feet of riot police.
When the Guardian released video footage of the incident, the IPCC at last took over the inquiry, but not before visiting the newspaper’s office with a City of London police officer to ask for the video to be removed from the website. They argued that the footage would jeopardise any future investigation, and it was upsetting the family. Neither claim turned out to be true.
The following day, Tomlinson’s widow and children were called to a meeting with the IPCC and City of London police, where the video was replayed to everyone present. Crampton warned the distraught family about the difficulties in identifying a man whose face was concealed behind a balaclava, and whose badge number was not showing. He suggested Tomlinson’s attacker may have been a member of the public who had stolen a police uniform. An IPCC investigator, Chris Mahaffey, would endorse the comment, saying the theory the man attacking Tomlinson was a police impersonator was a valid one that “needed to be explored”. The family, on the other hand, saw it as a bizarre, almost incomprehensible comment, which led them to question the impartiality of the nascent inquiry. As it turned out, it would take no great feat of detection to identify the man behind the balaclava: Simon Harwood had seen the video that same day and immediately handed himself in. He said it was the first time he realised the man he had shoved to the ground subsequently died.
In the following months the IPCC conducted one of the most extensive inquiries in its history, drafting in investigators from across the country, interviewing almost 200 witnesses and collating some 12,000 hours of video footage from CCTV cameras and mobile phones. Woven together, they provided a near-comprehensive record of Tomlinson’s final moments alive, as well as the descent into aggression of his assailant, Harwood, a van driver who, in a period of just eight minutes, became detached from his vehicle and lashed out at several protesters including a BBC cameraman he pulled to the ground, before setting eyes on the thickset frame of Tomlinson shuffling along a pedestrianised street.
Tomlinson had his hands in his pockets and his back to officers. He was walking, slowly, away from the approaching line of police. Harwood would later claim the newspaper seller was “almost inviting a physical confrontation”.
The Tomlinson case was a reminder that technologies used by states to monitor citizens can be just as powerful, if not more so, when the lens is pointed in the other direction – what some have termed “sousveillance“.
From the video showing police beating Rodney King in Los Angeles in 1991 to the cascade of footage uploaded to YouTube every day showing atrocities in Syria, citizens have discovered a new form of empowerment.
In the Tomlinson case, it was Chris La Jaunie, a New York investment fund manager who was in London for business, who recorded the video of the attack on Tomlinson and handed his film to the Guardian. He also became, by virtue of luck, a digital camera, and a sense of civic duty, a citizen journalist.
“I’m glad I came forward,” he said. “It’s possible Mr Tomlinson’s death would have been swept under the rug otherwise. You needed something incontrovertible. In this case it was the video.”
While the video may have answered some questions about Tomlinson’s treatment, the contested medical evidence created more uncertainty. With the investigation still in the hands of City of London police, the controversial pathologist Dr Freddy Patel was asked by the coroner to conduct the first postmortem examination. City of London police were present at the autopsy – the IPCC was barred.
Patel concluded that Tomlinson, an alcoholic with serious liver damage, had died of a heart attack. It would turn out to be a hugely controversial finding. Patel’s judgment had been called into serious question before that autopsy on Tomlinson’s body, and has been since. He is no longer registered on the Home Office list of forensic pathologists, and has been suspended twice by the General Medical Council after being found guilty of conducting botched postmortems and falsifying his CV. In one case, Patel is suspected of having conducted an autopsy on the wrong body. It is impossible to know what swayed the jury in their deliberations, but Patel’s testimony must have been central to their considerations.
His findings in relation to Tomlinson were contradicted by three other forensic pathologists, all of whom agreed that the cause of death was internal bleeding in the abdomen. But Patel – who conducted the first and most important autopsy and discarded the bloody fluid found in Tomlinson’s abdomen – was the key witness. It is impossible to know what swayed the jury in their deliberations, but his evidence must have had a bearing on their considerations.The small community of forensic pathologists privately expressed surprise when it first emerged that such a high-profile autopsy had been entrusted to Patel.
If the IPCC had investigated Tomlinson’s death from the outset – and taken seriously the emerging evidence that he had been attacked by police – would the outcome have been different? The IPCC has indicated it does not think so, while acknowledging that its response to a death of this kind in the future would be “very different”.
But the question is a simple one. Would IPCC investigators, with their expertise in suspicious deaths, and knowledge of the importance of the first postmortem, have allowed the coroner to appoint Patel as the solitary, discredited pathologist? Four months after the death, in August 2009, the IPCC passed its file to the Crown Prosecution Service, complete with its crucial flaw: the contradictory medical evidence.
Keir Starmer, the director of public prosecutions, would privately confide to friends that the decision over whether to prosecute Harwood would keep him awake at night as he tried to reconcile those contradicting medical opinions.
Starmer had promised the family a decision by Christmas. Instead they waited almost a year for him to announce that no charges would be brought against Harwood. He made it very clear what he saw as the main obstacle to prosecution: Patel’s evidence.
It was, for the family, a devastating moment, but only a prelude of worst to come. The DPP’s decision that there was no reasonable prospect of a jury convicting Harwood proved deeply controversial, not least after the inquest jury concluded, a year later, that the newspaper seller had been “unlawfully killed”.
Three weeks after the inquest ruling Starmer reversed his decision not to prosecute Harwood, saying new evidence had emerged at the inquest, and announced a criminal trial would take place.For the first time, there was seemingly compelling footage that had captured the moment a police officer was suspected to have killed a member of the public.
For those who campaign for police accountability, the Tomlinson footage made it one of the few cases of alleged brutality where there was a realistic prospect of conviction. But for the jury that would not be enough.
Tomlinson’s family – and history – will have to settle for the awkward contradiction provided by an inquest and a trial.
An innocent, vulnerable, man, who had been trying to make his way home through a demonstration in London was “unlawfully killed”, albeit unintentionally, by a police officer.
That police officer was Simon Harwood, a member of the Metropolitan police’s riot squad who, more than three years later, has been found not guilty of his manslaughter.