The Sean Rigg Independent Review: a family victory

The death in custody of Sean Rigg is something that I have blogged about extensively both on this blog and others. It was/is a tragedy unique not for its subject-matter but for the sense that it would come to embody an impetus for the reform of our approach to deaths in custody rarely seen more than once in a generation. And so it continues to prove. That is to the eternal credit of the Rigg Family and their dogged campaign for justice that led an independent panel reviewing the death to call on the Independent Police Complaints Commission (IPCC) - who conducted the initial investigation and cleared the officers involved of any wrongdoing - to reconsider the failure to bring misconduct proceedings and fundamentally reform their approach to conducting investigations in future.

It also condemned collusion between officers and their Federation representatives in responding to the investigation, a failure of local mental health services and inadequate training of officers in dealing with persons with mental health problems. The independent panel: Dr Silvia Casale, Martin John Corfe and James Lewis QC, also found "a malaise" in dealing with the obvious racial issues in this case ( a point that I will consider in a separate post). By taking a comprehensive, broad-based analysis of this case these conclusions have the potential to save lives and mark out the campaign that has struck a blow to the heart of the establishment.

The Terms of Reference

The Review’s broad terms of reference were

• to examine the IPCC investigation in light of both the evidence given at the Coroner’s Inquest and the verdict of the Inquest;
• to consider whether any further investigation is required, with a view to misconduct or criminal proceedings against any member of the police service;
• to identify any lessons to be learnt or broader issues for both the IPCC and the overall
• system for investigating deaths following police contact;
• to take account of the Rigg family’s concerns; and
   
• to take account of parallel reviews relating to policing, mental health and deaths in custody.

The IPCC's approach and Police Misconduct 

The challenge for the IPCC was (i) to examine all the surrounding circumstances, (ii) to consider which of these might have been causal to Mr Rigg’s death, and (iii) to explore whether the conduct of, or acts of omission by, any of the people involved contributed to his death and, if so, to what extent. 

This must also be read against the special remit of the IPCC enjoys as a result of our obligations under Art 2 ECHR. The Convention requires it to be proactive in investigating deaths in custody, the investigation should (i) be set up by the State of its own accord (without requiring any complaint or allegation), (ii) be independent practically and hierarchically, (iii) be effective in the sense of capable both of determining the legality of the State’s actions or omissions and of leading to the accountability of those responsible (including by criminal prosecution), (iv) be prompt and reasonably expeditious, (v) have sufficient public scrutiny to ensure effective accountability in practice as well as in theory, and (vi) should have sufficient involvement of the next of kin to ensure their legitimate interests

The IPCC failed that challenge. In part, and in summary, this was because of things that are beyond the Commission's control - they are reliant on officers, as the first at the scene, to maintain the integrity of potential evidence, which did not happen in this case. They are entitled to expect the co-operation of officers. Instead, they were met with the undue interference of union representatives from the Police Federation who interrupted questioning and officers who had been left  by investigators from Professional Standards (the authority with the primary duty to investigate police misconduct) to discuss the content of their statements before being interviewed.

So far as the IPCC is concerned, the Review "noted that the Commissioner in charge of the investigation into the death of Mr Rigg was the only member of the IPCC team on the case who was not located in London, [which] had implications for the effective oversight of the investigation." IPCC investigators most obviously failed to subject the account of police officers and other involved, to forensic scrutiny In particular:

"(i) the position adopted by the officers that they were not aware that Mr Rigg might be suffering from mental health problems was open to question on the grounds of improbability, given the clear indications of mental illness enumerated in the report;

(ii) if the police officers did not suspect that Mr Rigg was mentally ill, it was open to question whether they were observing him carefully enough and assessing him on an on-going basis; and

(iii) the omissions and/or failures of the police officers in relation to identifying Mr Rigg as a person with mental health issues were indicative of a lack of care towards Mr Rigg as a person in their custody."

This lack of diligence is one reason for the paucity of charging and prosecutions that follow a death in custody. The combined effect of the over-readiness of IPCC investigators to accept the accounts they received from the officers, who they did not interview for themselves until 6 months after the event left the such a "scant" body of  evidence on which, the review accepts, criminal charges could not be based. Instead, it was left  to the inquest to revive questions of police misconduct that must surely now be reconsidered.

The IPCC's critical lack of analysis is also shown by its failure to pursue pertinent issues that it identified for itself early on. In particular, the Review identified, concerns regarding mental health and restraint. At the time of the arrest, Sean had his own (expired) passport in his pocket. Curiously, the officers assumed it to be stolen and accordingly failed to identify him. This meant that they did not call for a criminal record check. Had they done so, markers of his mental health issues and a related history of violent offending that would have explained his erratic behaviour and would have steered officers to police policy on dealing with people suffering from mental health issues - which highlights the priority of prompt medical care. It also contributed to the fact that the police took 3 hours to respond to calls for help. This was indicative of police police performance at an early stage and was again something that was not given sufficient importance.

Sean was restrained, handcuffed, face-down on the ground by arresting officers for 8 minutes. He was under the control of those officers within just a few minutes. This was a breach of policing guidelines, which required a detained person to be returned to a sitting or standing position as soon as s/he had succumbed to arrest. Those handcuffs were not removed until some hours later, after he collapsed. Despite video evidence from a local resident who recorded to the initial arrest on their mobile phone, it was left to the coroner to identify and question these timing issues, even though the IPCC had commissioned a photographic expert for other aspects of the investigation. Importantly:

"Since the Coroner does not have the power to direct misconduct proceedings, it falls to the IPCC, as the only body with that power, to look again at its determination in the light of all the evidence available since the inquest."

That subsequent evidence includes footage that made a lie of the assertion that the custody Sergeant checked Sean whilst he was in the police van left in the car park of the police station. This is an assertion that goes to the heart of the question of whether or not officers properly discharged their duty of care. The IPCC had access to that CCTV material but were cursory by comparison in their analysis of it. The lie was only brought to light because of the "intensive scrutiny of the Rigg Family."

The Rigg Family

The Review considered that:

"the family are fellow travellers in the search for the truth. The perspective of the family must be recognised as important."

Lamentably, the IPCC treated them with the contempt of fare dodgers. The initial IPCC press release was issued without consultation with the family and worse still was fundamentally inaccurate suggesting, for example, that Sean died in hospital. To add insult to injury, the Metropolitan Police disclosed criminal record checks to the IPCC on two members of the family, despite only ever being asked to provide a check for the main witness to the assault. In a perverse turn of events, two people who should have been treated akin to victims were being treated as if they had something to hide. The suggestion that the material was relevant to the disclosability of CCTV evidence to the family was, as the Review found, nonsense,

Instead of returning those files unopened as irrelevant, they were viewed by a senior investigator. Fortunately, this did not affect disclosure but did amount to a further breach of the confidence that the family should have enjoyed in the authorities.

That breach was, of course, insignificant in comparison to everything that preceded and indeed followed it. Grief can be crippling at any time but the family refused to be crushed by the weight of the establishment mounted against them. The Review was in no doubt about the debt it owed to them:

"The Rigg family were determined to see that a thorough investigation took place. Their considerable and sustained efforts resulted in the emergence of information that might otherwise not have seen the light of day. The Rigg family are to be commended for their tenacity and commitment in this regard. This Review has benefited significantly from the input of members of the Rigg family and their solicitors."

Community Mental Health Services

"[T]here is a different requirement in terms of the scope of such investigations than holds for other IPCC investigations. When a death in custody occurs, the public has an interest not only in knowing whether any crime or misconduct has occurred, but also in understanding what has happened and why. This is especially important when there are lessons to be learnt to prevent further tragedies."

An IPCC investigation of a death in custody is broader than the inquistorial role of a criminal investigation. Their job is not only to establish what happened but to prevent it happening again. Identifying "gaps and practical shortcomings in individual cases" and extrapolating "patterns of systematic weakness across cases... [in order] to recommend changes to policy and operations. That demands "a more holistic approach". In that context:

"more emphasis might have been placed, in the IPCC investigation, on key features of the community mental health care provided to Mr Rigg."

This is a reference to the South London and Maudsley (SLaM) NHS Trust, whose inept management of Sean's care was also admonished by the inquest jury. Indeed, some of the issues were identified by the IPCC such as, the absence of a medical risk assessment during the relapse of Sean's schizophrenia .The Review echoed that criticism but identified other points that should have been considered. For example, there was no advance planning for relapse. The hostel that Sean was living in was also a residence where all the occupants were suffering from mental health problems, something that was neither notified to or recorded by the police (something which Lambeth council have since commited to addressing). The IPCC should have highlighted these "missed opportunities to provide care before crisis involvement with the police". This emphasises the point that

"[a] report from the IPCC must be expected to raise questions to be addressed by others, such as the Coroner, and to draw robust conclusions not only as to whether misconduct or criminal behaviour occurred, but also as to whether there was poor practice or major omissions in the duty of care constituting at least poor practice and possibly amounting to a breach of the duty of care." 

This would have brought attention to the need for greater co-ordination between and community mental health services.

Where now?

Earlier in the week, I questioned how much an inquest could achieve. The arguments I made there remain valid but the significance of this review cannot be underestimated. It has forced the IPCC to concede that it can no longer stand by its earlier report, which it will now reconsider. Channel 4 News also reported that the IPCC will review all of its investigations into deaths in custody. The IPCC's response actually identifies this as just one of the recommendations in the review but if it were accepted, it would surely cement this significance of this campaign alongside those of the Lawrence Family 20 years on from from the acknowledgement of institutional racism in the Metropolitan or the exposure of endemic police corruption by the family of the 96 people who died at the Hillsborough.

The Review has set out a template for more robust investigations by the IPCC. It has also called on the Commission to "articulate clear expectations and independent criteria for assessing police conduct." It has also increased the pressure on the officers, some of who are currently under investigation for perjury and perverting the course of justice, who now face the possibility of misconduct and potentially (more importantly) criminal proceedings.

The emphasis on the failings of mental health care and the need for improved training and greater coherence across community agencies, including the police is another one of many key outcomes. However, it is imperative that this review is not left to gather dust and that the impetus it has created is fully harnessed.

Whilst the authorities fatally missed numerous opportunities to save Sean's life, the Rigg Family seized upon their chance to hold them to account. They will be the first to acknowledge that they did not and could not have done it on their own. They secured the fearless support of lawyers like Daniel Machover and Helen Stone and Leslie Thomas. They have also been aided by the incomparable expertise and resources of INQUEST. Theirs is a journey that many have and will continue to travel, from the families of Jimmy Mubenga  Azelle Rodney, Kingsley Burrell and Smiley Culture; Daniel Morgan to Andrei Litvenenko. This review has such resonance not because the Rigg Family's quest is unique but because their fight against institutional corruption and a dogged pursuit of justice in the face of many slammed doors is well known to so many, particularly to those who have lost loved ones in custody.

 The Review is indeed a watershed for the IPCC. It marks a higher water-mark in the tide of criticism that has been growing ever since the IPCC was set up in 2002, replacing the similarly beleaguered Police Complaints Authority.  However, that cannot obscure the reforms that must be made of all the agencies that so badly failed Sean Rigg and countless others.The response to the review must be as robust and holistic as the IPCC should have been. We have not reached the last leg of this journey just yet.

Sean Rigg: Institutional reforms and prosecutions - If not now, when?

On Sunday night, reports surfaced on the internet of a violent arrest by police in Brixton of an unnamed man who was allegedly beaten by officers before being taken to Brixton Police Station. Tonight (Tuesday 21 August 2012), at 6:30pm at Lambeth Town Hall, a memorial service will be held to commemorate the death of Sean Rigg, who also died as a result of the excessive force used to restrain him by officers of that same police station, a year ago. 

Since 1990, more than 3,600 people have died in the custody of the State. According to INQUEST, a disproportionate number of those who die are from Black, Asian and other minority ethnic groups (BAME), who often die as a result of "excessive force, restraint or serious medical neglect". That medical neglect typically manifests itself in the cases of detained persons suffering with some degree of mental illness. Even --more alarming than the number of deaths in custody is the number of successful criminal prosecutions that they have given rise to - zero. 

The circumstances of Rigg's death are symptomatic of a culture of impunity. The unprecedented condemnation that it evoked in the jury that heard his inquest at Southwark Coroner's Court marks a crossroads for the State response to deaths in custody that must be seized upon to effect institutional reform. Only then can any progress be made in healing what is an open sore on our criminal justice system.

Sean Rigg was

"[A] gifted and talented young man. An artist and dancer, who enjoyed Martial Arts, and wrote, performed and produced an album and had completed writing a rappers opera which will be performed in his honour later this year"

Sadly, his untimely death was typical of so many of the 3600. He was a Black man who, at the time of his arrest was suffering a recurrence of the paranoid schizophrenia that he had been managing, with the help of medication, for several years. 

The jury at the inquest delivered a stinging rebuke of the authorities responsible for Rigg's death. The full verdict can be read here and has been variously covered by the media; for example here by the Guardian, here by The Independent, and here by Channel 4. 

The key points are these:

The cause of death was `1a cardiac arrest, 1b acute arrhythmia, 1c ischemia, 1d partial positional asphyxia’ and that he died at Brixton police station as a result of a cardiac arrest.

The Police

• ‘The level of force used whilst [Rigg was] restrained in the prone position…was unsuitable’ and that it was ‘questionable whether relevant police guidelines regarding restraint and positional asphyxia were sufficient or followed correctly’. He had been restrained unnecessarily in this position for 8 minutes.
• The majority view of the jury was that the restraint ‘more than minimally contributed to Sean Rigg’s death’.
• The police ‘failed to identify that Sean Rigg was a vulnerable person at point of arrest’ and he was therefore taken to the police station instead of an A&E department or Section 136 suite, ‘despite information about him being readily available and accessible’.
• Whilst Sean Rigg was in custody ‘the police failed to uphold his basic rights and omitted to deliver the appropriate care’ 

Mental Health Authorities 

• The South London and Maudsley NHS Trust (SLAM), failed to ensure that Sean Rigg took his medication. Furthermore SLAM’s failure to undertake a Mental Health Act assessment at or from the 11 August more than minimally contributed to the Sean Rigg’s death’.

A culture of impunity

The culture of impunity that pervades this area of the law is built upon the fact that the institutions charged with ensuring accountability consistently fail to do so. The Independent Police Complaints Commission (IPCC) does not command the levels of public confidence that it should. It is widely seen to lack independence and its investigations are often dismissed as "whitewashes". Moreover, its inability to compel the attendance of witnesses leaves it fundamentally toothless. 

The impotence and incompetence of the IPCC was typified by its management and investigation of the Mark Duggan shooting by Met Police Officers last August. In the hours immediately after the shooting, the IPCC released a statement that Duggan had been shot following an exchange of gunfire with officers. Indeed, an officer's life had only been saved by his radio, which caught a bullet. It turned out that the bullet was from a police-issue weapon.Then, they reported that there was no shoot out but that a gun presumptively belonging to Duggan had been found at the scene. Eventually, it was conceded that the gun had not been fired, not surprising given that Duggan's DNA was never found on the weapon. 

It did nothing to redeem itself here either.The IPCC investigation into Rigg's death found:

"no evidence that neglect or wrong doing or excessive force contributed to Mr Rigg’s death."

On the contrary, the four police officers involved:

“adhered to policy and good practice by monitoring Mr Rigg in the back of the van whilst being transported to Brixton Police Station following his arrest.”

You can read the full report here but clearly, the fact that the IPCC managed to reach this conclusion on much the same evidence that the jury considered is alarming. This might be explained by officers lying to the investigators but the fact that this has only transpired as a result of a court case does little to bolster the IPCC mandate.

Then came the decision of the CPS not to prosecute G4S or any of its employees over the death of Jimmy Mubenga, who died whilst being escorted by the Government's biggest security contractor on an extradition flight from Heathrow to Angola, just weeks before the Rigg verdict. This is despite the fact that Mubenga was forcibly restrained in a position that was said to amount to "playing Russian Roulette with detainees' lives" and despite eye-witness accounts that he was calling out that he could not breath shortly before his fatal collapse. It is hard to dispute that this decision was "morally and legally perverse"

The widespread disappointment that greeted the acquittal of PC Simon Harwood following his role in the events leading to the death of Ian Tomlinson at the London G20 protest in 2009 just seemed to rub salt in the wound. 

What now?

Against that bleak background, the Rigg verdict stands in sharp relief. Whilst a coronal jury has a limited remit and cannot consider any criminal charges itself, there is nothing to stop its determinations prompting  criminal (or civil) proceedings. In light of the evidence that the jury heard in reaching its decision (subject to criminal rules of evidence) and the public reception to it, there must at the very least be a case to answer in the courts. It remains to be seen whether Kier Starmer and Co share that view.

We saw equally unprecedented scenes during the August Riots. Even above the din of the hang-em and flog brigade, we  heard  commitments by MPs to addressing the various social injustices of which Mark Duggan's death has become emblematic - from the heavy-handed and unlawful use of stop and search to deprivation and poverty of opportunity and a lack of  opportunity. A year on and that inquest has been delayed by IPCC filibustering  whilst the Duggan family's pursuit of justice continues, marginalised in the popular consciousness.

The obvious difference for the Rigg case is that Sean has not been the victim of the smear campaign aimed at Duggan. Whilst the "he had it coming anyway" narrative (wrongly) dominated the Duggan case, Rigg is (rightly) seen as the victim of fundamental institutional failings.

Those failings must be robustly and candidly addressed by all concerned. The failure to provide for basic care needs for Riggs' mental health needs was inadequate and inexcusable. As far as the IPCC is concerned, its long-term future is currently being considered by the Home Affairs Select Committee. However, the IPCC have also commissioned an independent review of their original investigation as a direct result of the jury's verdict:

" it is the first time the IPCC has commissioned an independent eternal enquiry into one of its own investigation, despite frequent criticism from families, lawyers, MPs and campaigners in the past. But the scale of the apparent flaws into the Rigg investigation provoked disbelief as they were revealed at the inquest"

That said, it is not obvious what more an external review will tell the IPCC that it could not work out for itself from this case alone. Hopefully, the Select Committee, will propose meaningful reforms that will be implemented.

On the part of the Met, Assistant Commissioner Simon Byrne made the typical expressions of "deep regret" about Rigg's death but qualified this by reference to the "challenging circumstances" often facing his officers. He also highlighted the "clear policies and procedures in place for dealing [with those affected by mental illness]". Singularly failing the "robust and candid" test. If an officer needs to read a policy or procedure to work out whether or not it should take more than three hours and several 999 calls before officers are dispatched or to decide whether it is excessive to restrain a person in the way Rigg was restrained, they should have their warrant cards withdrawn immediately.

Byrne's statement, which can be read in full here, betrays the same lack of leadership that contributed to Sean Riggs' death. Until State authorities wake up to their corrosive failure to deal openly with deaths in custody, the families of Smiley Culture (a campaign that I have done some work for) , Kingsley Burrell (whose body still has not been released for burial more than a year after his death), Daniel Morgan and too many others, will be doomed to tread the circular path in their question for justice.

Clearly, not everyone who dies in custody does so in suspicious circumstances or as a result of unlawful actions. Equally, it cannot be the case that no-one has died in such circumstances, thereby demanding the invocation of the criminal law.

Legal reforms are needed but can only go so far in effecting change. This is evidenced by the fact that institutional/cultural changes towards a more open and accountable approach to deaths in custody have not been precipitated by the expansion of the law in the creation of the new offence Corporate Manslaughter (meaning that organisations as well as individuals are now liable to criminal prosecution) or by our Article 2 ECHR obligation to ensure an effective investigation into a death in the custody. Unless, use is made of legal powers, they are not worth the statute they are derived from.

The veil of impunity will only be pierced by a cultural change led by stronger prosecuting decisions. The only "problem" in lifting that veil is that it could expose an ugly face to our criminal justice system that some would rather not see. But if not now,when?