“The last time a police officer was successfully prosecuted in the UK concerning the death of somebody in custody was in 1969.”
The Guardian, 4 June 2020
Although successful prosecutions for manslaughter, homicide or assault concerning people in police custody are rare, this claim is not quite correct. We know of one more recent example—the prosecution of Sergeant Alwyn Sawyer, who was convicted in 1986 for the manslaughter of Henry Foley in his custody.
We haven’t found any other cases since the death of David Oluwale in 1969, when Inspector Geoffrey Ellerker and Sergeant Kenneth Kitching were convicted of several assault changes in 1971.
There’s an important distinction when checking historical cases: there have been other cases of police officers being prosecuted for manslaughter, homicide or assault related to deaths in custody, but only one case seems to have been successful since 1969.
In addition, at least two police forces since 1990 have been found guilty of breaking health and safety law relating to unlawful killings, but no individual was successfully prosecuted for the killings directly. At least one police officer was found guilty of misconduct in public office for failing to check in on a man who killed himself while in custody.
As of 5 May 2021, there are trials ongoing or soon to begin of two police officers, one of whom is accused of the murder and manslaughter of Dalian Atkinson.
While a lot of the evidence we go to in this piece covers England and Wales, we’ve seen no cases from Scotland or Northern Ireland since 1969. If you think we’ve missed any specific examples, please get in touch.
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How prosecutions happen
The Crown Prosecution Service (CPS) writes that ‘death in custody’ is a “broad term…not limited to deaths which occur in prison or police custody.”
Examples of a death in custody are where someone dies in a police station or prison, after being shot by a police officer, or while being detained for a search.
The CPS says: “A suicide can also be considered a death in custody, as can a death following a fight between prisoners, if there is an indication that a prison officer has negligently failed to prevent the death.”
However: “A death in a road traffic incident, even if the person who dies is under arrest and heading towards a police station in a police car, does not fall within the CPS definition of a death in custody.”
When someone dies in custody, the matter is referred to a coroner, a legal professional, who carries out an inquest to determine the circumstances around that death. One conclusion that an inquest can reach is that an “unlawful killing” occurred.
In some cases, a criminal investigation is launched which, in cases of deaths in police custody in England and Wales, will be led by the Independent Police Complaints Commission (IPCC).
Once the investigation is complete, the evidence is given to the Crown Prosecution Service (CPS) which decides whether or not to prosecute anyone involved.
Even if there was a verdict of unlawful killing from the inquest, the CPS may decide there isn’t enough evidence to proceed with a prosecution of a particular officer or officers, or that prosecution is not in the public interest. If it does proceed, the charge may not necessarily be homicide or manslaughter. As mentioned, in 2007 a Derbyshire police officer was found guilty of misconduct for not checking in on a man who killed himself in custody.
In 2007 the Metropolitan Police force was found guilty of a breach of health and safety law related to the killing of Jean Charles de Menezes, who was wrongly suspected of being a terrorist involved in the 2005 London bombings.
Prosecutions are relatively rarely pursued
There are relatively few examples of prosecutions for manslaughter, homicide or assault in police custody over a period of decades.
According to the charity INQUEST, which covers England and Wales:
“Since 1990, when INQUEST began recording, no police officer has been found guilty of murder or manslaughter [italics added] following a death in police contact or custody. In ten cases since 1990, murder or manslaughter charges have been brought against police officers. In all cases trials have collapsed or officers have been acquitted by the jury.”
INQUEST lists these 10 cases on its website, and has previously listed cases of unlawful killings (according to the verdicts of coroners at inquests) where prosecutions were not pursued.
One recent high-profile case where prosecutions were not pursued was the death of Sheku Bayoh, after he was restrained by police officers in Kirkcaldy in 2015. The Lord Advocate said there was not enough evidence to prosecute the officers involved, and there were also no prosecutions against Police Scotland for corporate manslaughter or health and safety charges.
There is an ongoing prosecution of police officers for murder and actual bodily harm.
In August 2016, Dalian Atkinson died following the use of force by officers of West Mercia Police, including using a Taser. On 7 November last year, the CPS announced that murder and manslaughter charges would be brought against one officer and actual bodily harm charges would be brought against another.
Those two officers have since been named as PC Benjamin Monk and PC Mary Ellen Bettley-Smith respectively, and their trials are due to begin in May 2021.
None of the organisations we spoke to during the initial research for this piece offered a more recent example of a successful prosecution for homicide, manslaughter or assault, relating to the death of a person in custody since the death of David Oluwale.
After his body was pulled from a river in Leeds in 1969, two police officers, Inspector Geoffrey Ellerker and Sergeant Kenneth Kitching, were prosecuted and eventually found guilty in 1971 on several assault charges, although the manslaughter charges that had been brought were dropped during the trial.
We now know of one more recent case. In 1985, retired bus driver named Henry Foley was killed by Sergeant Alywn Sawyer of Merseyside Police. Mr Sawyer was convicted of manslaughter in 1986.
Why are prosecutions rare?
An independent review commissioned by the Home Office in 2017 suggested that part of the reason may be that, in the context of past acquittals, the CPS was reluctant to prosecute new cases. It also said that “parts of the criminal justice system may have a conscious or unconscious bias against prosecuting police” as “it may be that there is a general default position in wider society to automatically trust the word of a serving police officer…”
The review went on to say that, in some cases, the CPS pursued a charge other than homicide, on the grounds that there wasn’t enough evidence to prove it:
“Health and safety prosecutions in the context of a death at the hands of the state have, on occasion, been employed as an alternative to homicide charges in police shooting cases, most notably in the deaths of Jean Charles De Menezes and Anthony Grainger”.
When asked last year about the lack of prosecutions over the last 15 years, the government said: “Every death in custody is a tragedy, and we are committed to delivering meaningful and lasting change to prevent deaths in custody… The Ministerial Board on Deaths in Custody will continue to oversee and drive progress in response to the independent review. This includes ongoing work to make police procedures more accountable following a death in custody as part of a wider package of police integrity reforms.”