Who will Police the Police?

Earlier today I tweeted about a case in the news involving the arrest of a 78-year old man on suspicion of murder after a suspected burglar was stabbed to death.

“What are our police thinking?” I said “He should be given a bloody medal!”.

Nothing better illustrates the increasingly dysfunctional relationship between the public and the forces of law and order than the reflexive reaction of the police to arrest a member of the public for defending himself against an armed criminal.

I am not of course saying that finding an intruder in your house gives you carte-blanche to kill them. The facts of the case are crucial. According to the BBC:

“The homeowner discovered two intruders in South Park Crescent, Hither Green, south-east London, at about 00:45 BST.

“One suspect, armed with a screwdriver, forced the man into his kitchen where a struggle ensued and he was stabbed, Scotland Yard said. [My emphasis].

“The 38-year-old was taken to hospital by paramedics but was pronounced dead at 03:40.”

In other words the police had established to their own satisfaction that the 78-year old man (who has not yet been named) was the householder, the deceased was a burglar, and the burglar was holding the householder prisoner and threatening him with a deadly weapon at the time of the stabbing. And knowing all this, they arrested him on suspicion of murder.

“When someone dies the police have to investigate” said a member of my household. Well, of course. But they don’t have to arrest all the witnesses in order to investigate a crime do they? Because that is what the householder is in this case. A victim and a witness. On the face of it this is a clear case of self defence, and the only crime to have been committed is burglary.

When a death has occurred there has to be a thorough investigation, and it remains possible that when all the facts are examined the police might decide there is a case the householder committed a crime. That would be the time to arrest him and charge him.

My point is that when there is a prime facie case that a member of the public has not committed a crime (though a possibility they may have done), and no reason to suspect they will flee, destroy evidence, or fail to cooperate with the police, then there are no legal grounds to arrest them. I am sure from reading about similar cases that police in the United States would not arrest under these circumstances, and they are also a common law jurisdiction.

The police could have taken a statement from this old man as a witness. Or they could have interviewed him under caution. According to reports he suffered minor injuries and he must surely have been traumatised by being burgled, threatened and involved in a life and death struggle with an armed criminal. As far as we know he is still being held in custody. This is inhumane, unnecessary and very probably illegal. Yet we have come to accept the arrest of law-abiding citizens guilty only of defending themselves against criminals as normal.

We must hope this unfortunate pensioner is released without charge as soon as possible and allowed to return home. And unless the facts turn out to be very different from those that Scotland Yard were happy to report to the BBC, a medal for bravery would not be out of place.

On a brighter note, Alison Saunders’ mission at the CPS to imprison everyone with a penis has ended. We must hope the fiasco of putting the police and CPS under political pressure to increase rape convictions, irrespective of the requirements of justice, has been recognised and is at an end too. This is well covered by the Daily Telegraph by Allison PearsonRowan Pelling and Gary Bell.

These episodes could not make clearer the need in this country for a genuinely populist party, by which I mean one representing the populace, the ordinary voters, reasserting our rights over identikit politicians, metropolitan elites and faceless bureaucrats.

After taking back control of our democracy we need to take back control of the police, the CPS and the courts, whose purpose should be to protect and serve the people, not to oppress them.

Update – 9 April 2018

The OAP involved in this case, named as 78-year old Richard Osborne-Brooks was released on bail on Thursday 5 April and on Friday was told he will face no further action.

In a statement, Detective Chief Inspector Simon Harding, of the Met’s Homicide and Major Crime Command, said:

“As expected with any incident where someone has lost their life, my officers carried out a thorough investigation into the circumstances of the death.

“We have approached the CPS for early investigative advice, as required under the guidance.

“We have received and considered that advice, and, at present – on the evidence available – we will not seek a charging decision.

“Therefore, no further action will be taken against the man.”

So far so good, but we have no explanation of the decision to arrest a man who, on the evidence available to the police at the time, had committed no crime, and had in fact been the victim of a crime. Only this:

“While there might be various forms of debate about which processes should be used in cases such as this, it was important that the resident was interviewed by officers under the appropriate legislation of the Police and Criminal Evidence Act; not only for the integrity of our investigation but also so that his personal and legal rights were protected.”

That really is not good enough. Police powers of arrest are explained here.

“To arrest you the police need reasonable grounds to suspect you’re involved in a crime for which your arrest is necessary.”

Yet in this case, the original police statement (see above) clearly indicated the householder had done nothing illegal. What is more, grounds for the arrest being “necessary” even if there were reason to believe a crime had been committed, seem to be lacking. Such grounds might include the likelihood of a person committing another crime, destroying evidence, or absconding. None of these would be likely in the case of a 78-year burglary victim, even if subsequent investigations had thrown doubt upon the strength of his “reasonable force” defence.

DCI Harding’s statement appears defensive on this point. No one is going to argue with the view that the circumstances of the death had to be investigated. But he gives no reason why taking a statement under caution would not have been appropriate. According to the Daily Mirror.

a law enforcement source said Mr Osborn-Brooks would have been arrested as a matter of course. [My emphasis]

And I think that is the explanation. But arrest is not a tool for dealing with witnesses, or with victims of crime. We should not accept that the police “as a matter of course” arrest anyone from whom they wish to take a statement. Such an attitude is corrosive to the generally good relationship that has obtained between the British police and general public, and of which both the police and the public have reason to be proud.

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