Who killed Patrick Quinn?
The framing of Malcolm Kennedy

The framing of Malcolm Kennedy

 

Who killed Patrick Quinn?
The framing of Malcolm Kennedy

Originally published in December 1994 by Hackney Community Defence Association

Introduction
Covering up police crime
Malcolm Kennedy's story
The police account
The burden of proof
Abuse of process
Free Malcolm Kennedy: Justice for Patrick Quinn

Appendices
1. Police officers
2. Chronology of events
3. HCDA 25 February 1994 news release
4. 10 May 1994 House of Commons Early Day Motion
5. Stoke Newington Drugs Scandal - Final Assessment (a report by HCDA)

 

Malcolm Kennedy


Introduction

After a three week trial in September 1990, a Court of Appeal hearing in February 1993, an aborted retrial in September 1993 and a second retrial which lasted 11 weeks, Malcolm Kennedy was convicted of the manslaughter of Patrick Quinn at the Old Bailey on Friday 6 May 1994. Kennedy had not been charged with manslaughter, it was not a suitable charge given that Quinn's injuries included 33 fractured ribs, crushed heart and larynx and he had lost a large amount of blood. Quinn's injuries could not be described as unintentional, so Kennedy had been charged with murder.

The jury returned their verdict after the trial judge, Mr Justice Swinton Thomas, advised them in his summing up that if they believed Kennedy caused Quinn's injuries, but did not intend to kill him, because of his drunken condition at the time, then they should return a manslaughter verdict. The jury went out on the Thursday afternoon, indicating that they would need some time to consider their verdict. After one night in a hotel, the jury returned a 10-2 majority not-guilty verdict on the murder charge, and unanimously convicted Kennedy of manslaughter.

In normal circumstances, Kennedy would have been acquitted of murdering Quinn, and the manslaughter alternative would never have been considered. It is impossible to believe that the jury were sure beyond reasonable doubt that Kennedy killed Quinn. The very fact that they returned a manslaughter verdict indicates they were not sure. But this was an exceptional case. Quinn died in Hammersmith police station. A police officer claimed to find Quinn covered in blood on a cell floor with Kennedy sitting on a bench beside him. The only possible conclusion, claim Hammersmith police, was that Kennedy murdered Quinn. Kennedy claimed he saw police officers assault Quinn in the cell, and they must have killed him. The Kennedy trial sidestepped fundamental principles of criminal law. It was not about whether Kennedy did, or did not, kill Quinn, the basis on which all criminal trials are supposed to proceed. The issue became - was Quinn killed by Kennedy or police officers?

Following the jury's verdict, Swinton Thomas made some damning comments about Kennedy before sentencing him to a nine year term in prison. His remarks belied his own, and the legal establishment's prejudices regarding allegations of criminal activities by police officers. He said:

"People over the past few weeks... have been accused of being murderers, perjurors and conspirators to pervert the course of justice. Those people, by the jury's verdict, have been entirely vindicated. I have no doubt at all you must have known from the outset that it was you and you only who was responsible,"

The Daily Telegraph put the point more succinctly in its headline the following morning:

"RETRIAL CLEARS POLICE OF KILLING IN POLICE CELL"

The death of Patrick Quinn and the manslaughter conviction of Malcolm Kennedy demonstrate fundamental weaknesses of the law in cases which involve allegations of police crime. The police's investigation of Quinn's death, the Crown Prosecution Service's preparation of the case and the conduct of the second retrial have collectively brought the criminal justice system into disrepute. For Malcolm Kennedy, this has meant he did not receive a fair trial and he is serving a nine year prison sentence for a crime he did not commit.

At the heart of the criminal justice system is the presumption of innocence. The prosecution has to prove beyond reasonable doubt that the defendant committed the alleged offence. In the Kennedy case that burden of proof shifted from the prosecution to the defence. It became necessary for the defence to prove that the police attacked Quinn.

Covering up police crime

There isn't a statutory body in Britain with responsibility for researching the police other than the police. Dotted around the country there are a small number of independent, community based, monitoring groups which provide limited information on police activities. They do not have the resources to thoroughly investigate police patterns of behaviour because they are otherwise engaged supporting members of their communities who have been attacked by the police. Consequently, there has been very little research into police crime. Because the subject has not been officially researched, the authorities do not even recognise police crime.

Information on police crime does exist. In the thousands of solicitors firms the length and breadth of the country, there must be tens of thousands of cases alleging police officers have committed criminal offences. It is not in the interests of the authorities to commission independent investigation of the police. There is a belief in this country that the traditional British Bobby, who polices the streets with the consent of the public, is above suspicion. However, during the past two decades the police's responsibilities and their social position has changed radically. The "policing by consent" ethos, which dates back to when Home Secretary Sir Robert Peel established the Metropolitan Police in 1829, has been replaced by increasingly coercive methods. It would be naive for anybody to assume that the dangers in which police officers so often find themselves, and their readiness to resort to violence (whether legally or illegally), has not deeply affected police attitudes and made them into more aggressive people.

In the absence of reliable research material on the police, stereotyped images dominate public perceptions of the police. At one extreme, unemployed black youth living in the inner cities are likely to see all police officers as racist and incapable of doing anything for their benefit. Prosperous middle class suburbia, on the other hand, sympathises with the police's difficult job and believes they can do no wrong. Between the two extremes, society has come to acknowledge that there is an acceptable level of police crime which, depending on your position, nothing can be done about or is necessary to maintain law and order.

Violent police crime

Hackney Community Defence Association is one of the few community based police monitoring groups in existence. It takes up the cases of people who have been assaulted and/or fitted up by police from Hackney's three stations - Hackney, Shoreditch (formerly City Road) and Stoke Newington - and residents of the Borough who have been attacked by the police elsewhere. In the five year period January 1989 - December 1993, HCDA dealt with 381 cases of alleged police wrongdoing arising out of Hackney's stations. Approximately one third of HCDA's caseload, 131 cases, involved incidents in which people claimed they had been assaulted by police officers. We are considering a very small sample of cases: i.e. the number of cases reported to a small community group covering just three Metropolitan police stations over a short period of time. It may be a small sample, but it is probably one of the best available.

In the majority of cases where people were assaulted by police officers, they were subsequently charged with criminal offences. 78.8% were charged with offences against police officers, ranging from obstruction in the execution of their duty to grievous bodily harm. HCDA has followed the progress of these cases through the criminal justice system and has been able to develop an understanding of violent police crime.

A police officer will charge their victim with a criminal offence so that they can cover up their own violent crime. If their victim is injured, the officer can explain away the injuries by claiming lawful violence was necessary to exercise the arrest or defend themselves. If their victim complains or wishes to sue for damages, the only two practical courses of action open to them to gain redress, their complaint or civil action cannot be pursued until after all criminal proceedings have finished. By this time it is highly unlikely that the officer will be charged, never mind convicted, of the original offence.

At the heart of the criminal justice system is the presumption of innocence. Because we are all presumed innocent until proved guilty, the burden of proof rests with the prosecution to secure a criminal conviction. The prosecution has to prove beyond reasonable doubt that a defendant committed an offence. This requires the police to investigate the alleged offence and collect together the evidence necessary to proceed with a trial. The magistrate or jury is then asked a simple question - did the defendant commit the offence or not? To convict, they have to be sure beyond reasonable doubt that the defendant committed the offence. A not guilty verdict does not mean that the defendant did not commit the offence, only that the prosecution failed to prove their case beyond reasonable doubt. It is the presumption of innocence principle which declares the defendant innocent.

In cases of violent police crime, where the defendant is the victim of their accuser, courts are faced with a more difficult question - who did it, the defendant or the police officer? Although the procedures for such cases are the same as any other criminal trial, there is a fundamental shift in the balance of power in the court. This is primarily because the burden of proof shifts significantly away from the prosecution onto the defence. No longer does the prosecution have to prove its case beyond reasonable doubt. No longer can the defence remain silent and call on the prosecution to prove their case. The mere fact that the defendant alleges that police officers acted illegally, requires the defence to attempt to prove to the court that their accuser is guilty. In such cases the presumption of innocence is eroded to such a degree that the defendant faces an uphill struggle to prove their innocence.

Police criminals have the best of both worlds in court: they do not have to prove their case, and if their victim is acquitted, the court's verdict only means that the prosecution failed to prove their case, not that they were guilty of any wrongdoing.

"I was charged with affray. I was found not guilty in the Crown Court. I "got off" but I didn't do anything, and the police "got away with it", even if they didn't convict me."
HCDA member, Chas Loft.

When magistrates acquit the victims of police crime charged with summary offences, they regularly make three accompanying comments - i) the prosecution were right to proceed with the case, ii) there is an element of doubt and iii) the verdict does not mean the police officers were in the wrong. These remarks are made to ensure the verdict cannot be construed to indicate what it invariably does mean - that police officers perjured themselves in order to cover up for their unlawful use of violence.

How it works

There are two principle moments in the criminal justice system - the arrest of a suspect, and their trial. Once a suspect has been arrested, a train of events is set in motion which concludes with the trial. Police officers know what to expect at trial and start preparing as soon as they have made their arrest. They are trained to operate this way. Violent police officers know as soon as they have committed an offence they can cover up their crimes by recourse to the courts safe in the knowledge that the whole weight of the criminal justice system will be brought to bear on their victim, and provide them with immeasurable support.

Police powers

The police possess four basic powers - the power to arrest people, the power to use force to make arrests, powers to invesigate crime and the power to charge. It is the combination of the twin powers of arrest and investigation which make the police's powers awesome. In minor cases, the arresting officer is likely to have sole responsibility for investigating the case, liaison with the CPS and appear as the chief prosecution witness in court. In serious cases, the police criminal can rest assured that the case will be investigated by colleagues who have an interest in securing their victim's conviction.

There is a belief among the police establishment that to recognise police crime as a problem would be to undermine public confidence to such a degree that it will result in a complete break down in law and order. Concerning violent police crime, it is commonly accepted that police officers are regularly confronted by violent criminals and they can rely on the full support of the police establishment in such situations. These two attitudes send a clear message to police officers - we are not on the lookout for unlawful police violence. Violent police officers can charge their victims with criminal offences knowing full well that once the finger of suspicion is pointed at their victim, it is not pointing at them.

Once a violent officer has arrested their victim they know what to do. They know that it is their word against the victim's and that a police officer is more likely to be believed in court. (Most cases of police violence take place in secluded or private places, or late at night, when there are no independent witnesses. If there are independent witnesses, they do not tend to come forward, and if they do, they are often discouraged or hidden from the defence.) The officer knows that s/he will be accused of violence under cross examination in court. Their contemporaneous notes of the incident, written up with any other officers present at the scene, will be crucial. They will be allowed to refer to their notes in court and, if they have fabricated a large part of their evidence, they have to make sure they get their story right.

Solidarity among police officers plays an important part in covering up police crime. This camaraderie between officers takes place in the canteen and is invariably expressed when writing up their notes together following an arrest. However, police solidarity does not amount to officers blindly supporting each other; several factors come into play which result in different levels of solidarity.

i. First principle is that each officer is responsible for covering their own back. The minimum that officers can expect from their colleagues is that they do not deliberately contradict each others evidence. At this basic level, officers are not expected to implicate themselves in order to protect an errant colleague.

ii. An officer may be willing to do more to cover a colleague for several reasons - a) they might owe them a favour, b) they might be keen to impress a more senior colleague or c) they might be bullied into changing their evidence.

iii. Police officers rarely support each other regardless of the consequences for themselves. But police "firms within the firm" and criminal gangs of police officers do exist, and they sometimes have cause to cover up their crimes. These are possibly the most difficult cover ups to uncover because of the tightness of the officers (possibly under the cloak of Freemasonry). Their mutual trust and closeness allows them to fabricate a version of events capable of withstanding the closest scrutiny.

Criminal investigations normally focus on the evidence of crimes which have been committed. The police have a duty to independently collect together the evidence to prove that the suspect committed the crime. If there is no evidence against the suspect, s/he is not charged. In violent police crime cases, the focus of the criminal investigation is not the evidence, it is the suspect. The police are not impartial in violent police crime cases. Victims can be charged solely on the word of police officers, and the subsequent investigation looks for evidence to support the accounts written in police officers notebooks or other police documents. All the material evidence may indicate that the suspect was in fact the victim of violent crime (injuries to the suspect and none to the officer, damaged clothing, etc), but this evidence is subordinated to the officer's allegation against the suspect. Right at the outset of the criminal justice system, after the victim of police crime has been charged, there has been a shift in the burden of proof onto the defence. The prosecution proceeds with its case on the word of police officers without a thorough invesigation, and against all the evidence if necessary. The defence, by comparison, has to conduct its own investigation to uncover as much evidence as possible to prove their innocence. This shift in the burden of proof allows the police to devote their investigation to disproving the defence case rather than prove their own, and look closely at the suspect's character.

Character evidence

The law demands that defendants are tried in court by the rule of law and the facts of the case. A defendant's criminal convictions cannot be disclosed in court because inferences cannot be drawn about their character. Except: when defendants challenge the character of the police. In violent police crime cases, defendants have to allege that criminal offences were committed by police officers. Having questioned the character of the police, the law then allows the prosecution to question their own character, including their criminal record if they have one. Alternatively, the defendant may not give evidence and hope that the court does not draw any inferences.

The right of the prosecution to question defendants' character undermines the principle that cases have to be tried on the facts. It allows the police to focus their investigation on the suspect instead of the evidence. Many victims of violent police crime have to defend their characters in much the same way as rape victims have to contend with allegations of sexual promiscuity. The victim might not have any criminal convictions, but the police will take the opportunity to question a defendant's character and devote some of their investigation to finding information which can be used to discredit them.

Police complaints procedure

Police crime is dealt with in Britain by the misnamed Police Complaints Authority (PCA), as established by the 1984 Police and Criminal Evidence Act. In the first instance it is the responsibility of the victim of violent police crime to complain. If an assault took place outside the police station, they can complain on their arrival to the custody officer who has to record the complaint in the custody record and inform the duty officer. If the assault takes place in the station, they still have to complain to the custody officer who is responsible for their welfare. The duty officer has to inform the area complaints unit which will investigate the complaint. Because of the difficulties involved in making complaints on arrest, many people complain in writing after they have been released from custody.

Serious complaints are referred to the PCA, which supervises the police investigation into the complaint. The police can also refer incidents to the PCA without complaints having been made. If a complaint is made following a death in police custody or a serious incident, the police have a mandatory duty to refer the complaint to the PCA supervision, and the PCA can appoint the investigating officer.

If a complaint arises directly out of a criminal charge being brought, that complaint cannot be investigated until after the criminal case has been completed. For the protection of all parties the complaint is said to be sub judicie. But, police officers are obviously aware that if the complainant is convicted, then there is no basis for their complaint. This is exactly the position faced by the victims of violent police crime who are charged with offences against the police. The police can ignore the complaint on the basis that it is the defendant's case and will be decided by the court. (Custody and duty officers have been known to summarily dismiss complaints in this manner and write their comments in the custody record.) Complaints which are properly proceeded with are shelved pending the conclusion of the criminal case. Although exact figures are not available, a high proportion of cases of violent police crime will conclude with the victim being convicted and their allegations will not have been investigated (this will be the reason for some of the complaints having been withrawn or not proceeded with in the table below).

With the police responsible for investigating crime and complaints there is an obvious conflict of interest in cases of violent police crime. The absence of a separate body to investigate the police means that the complaint investigation is subordinate to the criminal investigation, and that investigating officers are more concerned with their colleagues' interests than complainants'. The police bias in the police complaints procedure is reflected by the low number of complaints which are proved, about 2.5% out of some 30,000 made each year, and the increasing tendency for victims to sue chief police officers for damages.

Metropolitan Police Complaints (by formal resolution)

Year
Total
Withdrawn/not
proceeded with
Not
substantiated
Substantiated
(% of total)
1985
5238
2708
2380
150 (2.9)
1986
4567
2383
2043
141 (3.1)
1987
4550
2717
1728
105 (2.3)
1988
5813
3211
2418
184 (3.2)
1989
5666
3564
1999
103 (1.8)
1990
7309
3471
3666
172 (2.4)
1991
7066
3404
3478
184 (2.6)
1992
7301
4144
2987
170 (2.3)
1993
6320
3744
2427
149 (2.4)


Source: Hansard 14 February 1994.

Victims of violent police crime who are not charged with criminal offences have their complaints investigated immediately. Therefore, it is in the interests of every police officer who commits a violent criminal offence to arrest and charge their victim.

The Crown Prosecution Service

The Crown Prosecution Service (CPS) was established by the 1985 Prosecution of Offences Act and started operating in 1986. The CPS has responsibility for conducting prosecutions. CPS solicitors prepare cases for court and instruct barristers to represent them in court (in magistrates courts, CPS solicitors often prosecute cases themselves). Before the Prosecution of Offences Act, the police had responsibility for conducting investigations through Police Solicitors Offices. As an independent prosecuting service, the CPS has a duty to check the quality of police evidence, and the power to discontinue cases where there is insufficient evidence or a conviction is unlikely.

The CPS is stuck in the middle. It has a responsibility to the police to conduct prosecutions and it has a responsibility to disclose evidence to the defendant. It is criticised by the police for failing to proceed with cases, and cynically referred to as the Criminal Protection Service. It is criticised by defendants for conspiring with the police to pervert the course of justice.

The problem for the CPS is that its solicitors and instructed counsel have to believe what police officers tell them. Although the CPS has a duty to question the quality of the police's evidence, to disbelieve police officers would be to undermine their power to prosecute; if they continually question what police officers tell them they would never get their cases to court. On the basis of information provided by the police, CPS lawyers decide how to proceed on points of law. Although some CPS lawyers might enter into conspiracies with police officers to pervert the course of justice (for example, by deliberately failing to disclose evidence to the defence), they do not really need to, all they have to do is receive information from the police without question. In the same way that CID officers with responsibility for investigating offences, officers with responsibility for investigating complaints, and the police establisment, fall into line to support criminal police officers who arrest their victims, so do CPS lawyers.

In court

Crime is a major problem in Britain. Crime is dealt with by the police in the first instance, and then by the courts. Regardless of all the bad publicity the police might receive, they are responsible for crime prevention and detection. The police have responsibility for protecting the public. Nobody wants to disbelieve the police, to do so would be to undermine their own security. Even the victims of police crime, who might vehemently denounce how they have been treated by the police and criminal justice system, appreciate that society needs law enforcement institutions. Professional criminals accept that the police have a necessary job to do. The ideological position of the police as the defenders of a democratic and free society is hammered home by a well oiled public relations machine.

Everybody who attends court - magistrates and judges, jurors and barristers - carry with them images of the police as law enforcement officers working in difficult circumstances. Violent police criminals are able to exploit the public's perceptions of the police. They know that magistrates and juries will have to struggle with their own prejudices before disbelieving a police officer. Many court cases centre on the question of who did it, the defendant or their accuser. A common defence against allegations of criminal violence is that the defendant acted in self-defence. Perceived as public servants doing difficult jobs, police officers are seen in court as independent witnesses - their credibility is taken for granted. In cases of violent police crime, the police are not independent, they are directly implicated, but the defence still has to overcome the assumption that police officers are impartial and truthful. It is the privileged position of the police in the criminal justice system, their ability to intervene in the process at every stage from arrest to trial, which allows criminal officers to tilt the scales of justice in their favour.

The criminal police officer turns up at court supported by the police establishment, CPS lawyers and the public's confidence. Their victim appears nervously in an alien environment, knowing they have to convince the court of their innocence. The manner in which the prosecution and the defence cases have been prepared causes trials to follow a set pattern.

Police officers appear as the chief witnesses for the prosecution. The law allows them to rely on their notebooks when giving their evidence. Their choreographed accounts were collectively written after the arrest in the police station canteen to cover up evidence of their own crimes first, and accuse the defendant second. The time it has taken for the case to get to court, and their busy work schedules, are reasonable explanations for their forgetting any details of the incident which they did not write down in their contemporaneous notes. Complications arise for police officers when they are forced to admit facts in the witness box which they did not record in their notes, which may contradict other officers evidence and even their own notes. Police cover ups are not commonly watertight cases, on the contrary, they are often full of holes. As each officer attempts to give a plausible account of their own actions, while not implicating a colleague, they leave themselves open for robust cross examination by the defence.

The balance in court changes as soon as the defence begins its cross examination. Forced into the position of accusing officers of lying and having committed criminal offences, counsel for the defence has to take the trial to the police. The character of the trial changes, instead of the defendant being on trial, it appears that the police are on trial. Counsel for the prosecution can exploit public sympathy for the police by asking the magistrate or jury to dismiss the absurd suggestion that a police officer might be lying

A properly prepared defence in cases of violent police crime, will have conducted a thorough investigation into the incident. Statements will have been taken from all possible witnesses, expert reports commissioned and photographs taken. Experienced defence lawyers know that to win a case against the police it is necessary to collect as much information as possible to prove their clients' innocence.

The prosecution, on the other hand, does not have to prepare a thorough case. The police officer who committed the original offence, knows a full investigation of the facts will reveal the truth. His/her contemporaneous notes, supported by colleagues' accounts, were carefully written to exclude evidence of their crime. Investigating police officers and CPS lawyers know from experience which direction trials of alleged police violence are going to take and they will be able to focus their attention on disproving the case of a defence forced onto the offensive. Here we note the shift in the burden of proof again. Technically, the prosecution still has to prove its case beyond reasonable doubt in violent police crime cases, but it can do so in a different way. Instead of fitting together a jigsaw of evidence to prove its case, the prosecution leaves the defence to put its charges to the officer and then sets about disproving their case. As soon as the defence makes an allegation against a police officer in court, the prosecution can question the character of the defendant and call on the defence to provide a motive for the police officer's alleged offence.

The motive for police crime is the most difficult problem for their victims to overcome. Why should police officers go round violently assaulting people for no apparent reason? Paradoxically, if the victim does not have a criminal record it can be even more difficult to convince a court that the officer, who does not know the defendant, had any reason to break the law.

Britain's adversarial criminal justice system seeks to administrate justice by the prosecution and the defence arguing to convince the court of their case. There is not an independent investigative element in the system, investigations are conducted either for the prosecution or the defence. Because of their close inter-relationship, the prosecution and defence determine each others' roles in court. In police crime cases, where it appears that the police are on trial, with the defence on the offensive and the prosecution on the defensive, a role reversal takes place. Whatever might be said in court about the need for the prosecution to prove their case beyond reasonable doubt (both the prosecution and the judge have to advise the jury that they have to be sure the defendant is guilty), the burden of proof is shifted onto the defence. Juries need to be sure that police officers have lied before they acquit. The more serious the allegations against the police, the more a jury will need to be convinced of the defendant's innocence and, the more excuses the prosecution can make for their weak and confusing case as they sit back and ask the defence to prove a motive.

Getting away with it

Uppermost in the mind of the violent police criminal is the need to escape prosecution. That is the reason for charging their victim. When courts convict their victims, officers have successfully covered up their crimes. The case is invariably closed. If their victim is acquitted, or their conviction overturned on appeal, the police officer is still likely to avoid prosecution. Four factors act in his or her favour.

· The failure of the prosecution to prove its case does not mean the officer committed a criminal offence. Unless police officers commit blatant perjury, or overwhelming evidence of a conspiracy to pervert the course of justice comes to light, the case will not be referred to the Director of Public Prosecutions to consider criminal charges against the officers.

· The purpose of the original police investigation was to prove the defendant committed an offence. Evidence that suggested police officers committed offences will have been pushed to one side - statements might have been ignored, documents lost or leads simply not followed and forgotten. By the time criminal proceedings have finished and a complaints investigation takes another look at the case, evidence of police crime is likely to have disappeared altogther. Although the complaints procedure will be followed, the complainant interviewed and a file sent to the CPS, the victim charged with a criminal offence will have even less chance of being successful than if they were not charged.

· The CPS has sole responsibility for conducting prosecutions, it prosecutes members of the public and police officers. It is laughable to the think that the same institution which prosecuted the victim on behalf of the police, is then able to prosecute the police on behalf of the victim. (To prove our point, the conduct of the CPS against officers who framed the Birmingham 6, Guildford 4, Tottenham 3, etc has been hilarious.) In the likely event of the PCA and police complaints investigators failing to discover evidence supporting the complainant, the widely accepted presumption is that if it is the victim's word against a police officer, the officer will not be convicted and therefore will not be charged.

· Because of the poor success rate of police complaints, many victims of police crime elect to sue the police for damages. Once they have been acquitted, they can commence civil proceedings for assault, false imprisonment and malicious prosecution. Civil actions are not for the purpose of holding police officers accountable for their actions, they are a legal means by which victims claim financial compensation for damages. Victims of police crime do not sue the individual officer responsible (it would be pointless to do so for complex legal reasons), they sue the person with ultimate responsibility for the conduct of all police officers - the chief officer. The police criminal avoids personal responsibility for their crimes in civil actions. Even if the victim wins their case, which will take several years to conclude, it remains unlikely that the police officer will be charged with a criminal offence. The official explanation for such decisions is that civil cases are decided on the balance of probabilities, a lesser burden of proof than required to secure a criminal conviction or prove a police complaint.

A question of motive

Whether a person intentionally or unintentionally commits a criminal offence, the question of motive plays a major part in police investigations. The police will not only seek to show what actually happened, they will support their allegations with an explanation for why the suspect behaved as they did. By looking at the facts of the crime and the motive for the crime, the police and prosecution present the court with a total picture.

When a victim of police crime has to prove their innocence to a court, they also have to explain the police officer's motive. Again, the defendant finds there has been a shift in the burden of proof. It may be extremely difficult to prove a motive for police crime because police officers work requires them to confront members of the public they suspect of criminal offences. The police and prosecution can rely on this weakness in the defence case. They can sit back and call on the defence to prove a motive for police crime knowing that failure to satisfactorily do so will help their case.

This is an unjust situation for the defendant to find themselves in. They might get the motive wrong. This need not disprove their case. It might simply mean they did not have access to the necessary information to thoroughly investigate their case.

The requirement to show a motive works very much in the police's favour. Above we described a pattern for violent police crime and the charging of victims to cover it up. Because there are no official statistics on violent police crime, does not mean the problem does not exist. Equally, the way in which the police treat drunk and incapable people raises serious concerns. There does not need to be a motive for police crime, it may just amount to standard police practice when dealing with particular categories of people.

Police treatment of drunks

Most people have been drunk at some time in their lives. Most of us have been drunk and incapable. Hopefully, in our own homes where we can manage to get to our beds. At such times we can be argumentative and do foolish things. We wake up the following day not remembering what happened, only to be embarassed when somebody tells us. We know what it is like to be vulnerable when drunk.

Out of the 131 cases of police violence taken up by HCDA, in 42 (32%) cases the police claimed their victims were drunk. In all of these cases the police accused defendants of being drunk, regardless if they were, to a) discredit them, b) justify the use of force to arrest them and c) challenge their ability to recall an accurate version of what happened in court. In many of these cases the police alleged drink caused defendants to behave violently and gave them immense strength, requiring several officers to use force to restrain them.

Drunk and incapable people who have been arrested are completely at the mercy of the police. Police officers can be lenient or brutal. They can use minimum force to restrain a drunken person who becomes violent, or they can use the opportunity to express their own frustrations and administer a violent beating.

Deaths of drunks in custody

A high proportion of deaths in police custody are related to drunkenness. Out of 183 deaths in the custody of the Metropolitan Police between January 1985 and 31 March 1993, 46.5% of cases were drink related.

Deaths in Metropolitan Police custody

1985
1986
1987
1988
1989
1990
1991/2
1992/3
Total
14
15
28
30
37
20
21
18
Drink related
12
10
12
11
13
10
7
10


Source: INQUEST (taken from Chief Commissioner's annual reports)

All deaths in custody are shrouded in secrecy. The inquest procedure allows coroners to decide which information is relevant, and legal aid is not available to provide the deceased's relatives with legal representation. The situation is even worse for people who die after being arrested for drunkenness. Many of the drunk people who die in police custody do not have traceable friends. Without relatives to ask questions of the police, many inquests serve as a rubber stamp for the police's version of what happened. Although alcohol may have been the medical cause of death, other contributing factors, like injuries sustained during an assault, will be swept under the carpet.

By law, the only special treatment for drunk people is that they are visited in their cell every half an hour and roused. The police have a duty to call a doctor for injured prisoners, but they do not have to call a doctor to check a drunk person. Unqualified in medicine, police officers can quite easily mistake an injury or a medical condition for drunkenness.

The British Medical Association and the association of Police Surgeons published a report in June 1994, entitled "Health Care of Detainees in Police Stations". This described much of the medical treatment available to prisoners as "appalling" or "non-existent". The report recommended that the care of detainees with alcohol problems should not be managed in police stations which are "potentially dangerous places".

The number of deaths of drunken people in police custody raises serious questions about police attitudes towards drunken people, their stereotyping of people as drunk and the treatment they receive in custody. The death of Richard O'Brien on 4 April 1994 serves as an example.

The case of Richard O'Brien

On the evening of Easter Sunday 1994, 37 year old Irishman, Richard O'Brien, went to a dance at the English Martyrs Catholic Social Club in Walworth. A fight broke out, and O'Brien was waiting with his wife and son for a taxi when police arrived on the scene.

O'Brien was ordered to move on. When he informed the police he was waiting for a taxi he was knocked to the ground and dragged to a police van by his hair. When his wife and son objected to the police's treatment of O'Brien they were arrested. Many people witnessed what happened.

On their arrival at Walworth police station at 12.25am on Easter Monday, O'Brien was unconscious. Mrs O'Brien pleaded with the police for her husband to receive medical attention. An ambulance was called at 1.08am and he was pronounced dead at Kings College Hospital, Camberwell at 1.35am.

The police have stated that O'Brien was arrested for being drunk and disorderly and was found to be "unwell and unconscious" on his arrival at the police station. Mrs O'Brien said that when she asked officers to do something about her husband one of them replied "He'll be alright - he's only a fucking Paddy."

The post mortem into O'Brien's death at the Greenwich Mortuary was inconclusive and the coroner's inquest was opened and adjourned. Chief Superintendent Gerry McBride informed the April meeting of the Southwark Police and Community Consultative Group that the post morten "did not show any significant injuries contributing to Mr O'Brien's death." He suggested that the 24 stone O'Brien's heart condition could have had a bearing on his death.

The Irish community reacted angrily to O'Brien's death. The Irish in Britain Representation Group has called for a "full independent inquiry" and there were demonstrations at Walworth police station in following weeks.

Richard O'Brien's death illustrates junior police officers attitudes to drunk people and their stereotyping of Irish people as drunks. It is left to senior officers to cover up junior officers actions by suggesting causes of death which will exonerate them. Coroner's inquests are responsible for determining the cause of death, but when deaths in police custody occur, the police invariably preempt verdicts by giving their own explanations.

Conclusion

The purpose of this section has been to go beneath the surface of the criminal justice system to look at how the police get away with violent crime. There are police officers who regularly attend court as the only witnesses to give evidence against defendants charged with assaulting them. They rely on the public's sympathy for the courts to take their side. We do not suggest that all police officers abuse the legal process, only that they are in a priviliged position to protect themselves from prosecution. Police work is difficult, and police officers often find themselves in violent situations. If they over-react to a situation and commit unlawful violence (a single punch in the mouth for example) fearing that they were in danger themselves, they can cover up their wrongdoing by charging their victim. This leaves their victim in a most vulnerable position. The same public servants responsible for their safety are responsible for their fear, and they have to prove they are the victim.

The same process which protects the errant officer also protects the criminally violent. Patrick Quinn was arrested for being drunk and incapable at 11.05pm on the night of 23 December 1990. At some time during the next two to three hours he received a vicious beating. He may well have been assaulted on two separate occasions. The nature of the police investigation into his death and the prosecution of Malcolm Kennedy, who had also been arrested for being drunk and incapable, indicate that police officers covered up an assault on Quinn by charging Kennedy, the last non-police officer to have apparently been with him alive. The progress of the Kennedy case suggests that a "classic" cover up for a standard case of police violence was immediately set in motion with embarassing consequences for the police. It was a shabbily prepared case which revealed a disorganised police station blatantly ignoring procedures, with the police and prosecution unable to explain many discrepancies. The police and prosecution relied on the prejudices of the jury when the final question was put - did Kennedy or police officers kill Quinn? There was no clear motive for the police killing Quinn. Unable to believe that police officers were capable of murder, and apparently unable to believe Kennedy was, he was acquitted and convicted of manslaughter.

Malcolm Kennedy's conviction will assume the same importance for the criminal justice system as the Guildford Four and Birmingham Six cases. In the celebrated miscarriage of justice cases, the police claimed they had got the right people for the crimes. There was no suggestion that the police might have committed the crimes themselves. They fitted up people that they believed to be guilty. The long campaigns for justice in support of the innocent eventually exposed how the police framed their victims.

In the Malcolm Kennedy case, police officers committed crimes and fitted up an innocent person to cover them up. By law, all Kennedy has to do to clear his name is show that there is a reasonable doubt about the safety of his conviction. But, this pamphlet, and the campaign to clear his name, will have to show that the police have got away with attacking of Patrick Quinn. We hope it will not take as long as the 17 years it took the Guildford Four and Birmingham Six to clear their names.


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