FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42078/02 by Janet ALDER against the United Kingdom

The European Court of Human Rights, sitting on 14 December 2010 as a Chamber composed of:

Ljiljana Mijović , President, Nicolas Bratza , David Thór Björgvinsson ,

Ján Šikuta Ledi Bianku, Mihai Poalelungi, Vincent A. de Gaetano, judges and Fatoş Aracı, Deputy Section Registra r,

Having regard to the above application lodged with the European Commission of Human Rights on 30 September 1998,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Janet Alder, is a British national born in 1961 and she lives in Lancashire . She is represented before the Court by Mr A. Gask, a solicitor with Liberty , a civil liberties organisation based in London .

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties , may be summarised as follows. It concerns the death of the applicant ’ s brother, Mr Alder, while he was in the custody of Humberside police on 1 April 1998. Mr Alder was of Nigerian origin, he was born in 1960, he had two children and he had lived in Hull since 1990.

A. The circumstances of the case

1. The events of 1 April 1998

3 . At approximately 0 2.15 Mr Alder was punched in the face by Mr Paul outside a nightclub. Mr Alder fell to the ground, hit his head and was unconscious for some time. An ambulance and police officers (PC Dawson and PC Blakey, “the arresting officers”) arrived at 02.30. Mr Alder was taken to hospital by ambulance. The police officers did not speak to him at the nightclub and went on to the hospital. As he was being transported, the police officers radioed their control room noting that he was “well in drink”.

4 . Mr Alder arrived at hospital at around 02.44. His behaviour was erratic (both requesting and refusing treatment) and he was verbally aggressive. He was examined by two nurses and a doctor: he had a laceration to the upper lip, one tooth missing and another loosened, he registered 14 out of 15 on the Glasgow Coma Scale ( a neurological scale providing a means of recording the conscious state of a person , notably after a head injury) and his blood alcohol count was around twice the driving limit (that his alcohol level was not excessive was later communicated to the arresting officers by a senior nurse on duty). The treatment plan was admission for observation, a head x-ray and reference to a maxilla-facial specialist. His erratic behaviour rendered his admission and management difficult.

5 . The arresting officers arrived at the hospital at or around 03.05 and noted Mr Alder ’ s behaviour and the medical staff ’ s difficulties. At one point, Mr Alder got up to go to the toilet, then collapsed on the floor and was taken into the toilet by those officers, who stood at the door to the toilet while Mr Alder urinated on the floor in front of them. He was verbally aggressive to the police officers and somewhat incoherent. Hospital staff indicated to Mr Alder that they could not treat him if he continued behaving as he did. The arresting officers dragged him outside backwards. Once outside, Mr Alder continued his erratic behaviour, was verbally aggressive to those officers and was arrested for breach of the peace. The arresting officers threatened to use CS gas, both inside and outside the hospital.

6 . A police van was called at 03.34 and arrived at the hospital around 03.40 driven by A/PS Ellerington. Mr Alder was conscious and behaving rationally prior to entering the back of the van. In later statements, it was recorded that the arresting officers drove in the police car behind the van.

7 . After a five-minute journey, the van arrived at Hull Queen ’ s Garden police station at approximately 03.46 (“Humberside police station”). The gatekeeper recalled PC Dawson only getting out of the police car. On arrival, Mr Alder was unconscious, the arresting officers describing him as being in the same position in which they had placed him in the back of the van although slumped in his seat with his head against the back of the van. The arresting officers, considering that Mr Alder was feigning unconsciousness, dragged him (by his upper arms, face down with his lower body dragging) into the police station, down the corridor and into the custody suite area.

8 . The latter area comprises a prisoner/reception area (a relatively small corridor space) with a bench attached to one wall opposite a work counter or “charge desk” behind which is the custody officers ’ charge room area. Various cameras recorded constantly (image and sound) the custody suite.

9 . The applicant submitted, inter alia , recordings of Mr Alder being carried down the corridor and being placed on the floor and subsequently dying in the prisoner/reception area of the custody suite as well as a timeline of relevant events in the custody suite.

10 . A number of persons were present in the custody suite during the relevant time (03.46.52 to 03.57.25). The custody officer on duty was PS Dunn assisted by the custody warden, PC Barr. A civilian employee, Ms Winkley , came in and out. A/PS Ellerington came into the custody suite for a few minutes ( 03.48.51 to 03.51.23). PC Wildbore briefly came into the suite at 03.50. The arresting officers were present throughout . All persons circulated around the work counter just beside Mr Alder.

11 . At 03.46.52 Mr Alder was placed by the arresting officers on the floor of the prisoner reception area of the custody suite (just in front of the charge desk). His body was inert, his hands were handcuffed behind his back and he was placed face downwards on the floor, his left cheek on the ground and his head facing to the right towards the custody desk. Some blood dripped from his mouth. His trousers and underwear were around his knees and he was doubly incontinent. From arrival, his breathing was audibly slow and extremely laboured.

12 . Once Mr Alder was placed on the floor, the custody officer immediately said that he should be taken to hospital. PC Dawson responded they had just come from there and PC Blakey added that the hospital would not have him and that Mr Alder was “right as rain”. PC Dawson went on to say that Mr Alder was “acting”, PC Blakey adding that it was “a show”: both repeated this point of view. Approximately 2 minutes after arrival, PC Blakey began to remove the handcuffs, at one point assisted by PC Blakey: this procedure took in the region of 2 minutes and Mr Alder remained motionless during the procedure. Otherwise during the relevant period, the arresting officers and PC Dunn discussed around the work counter the charging of Mr Alder (for breach of the peace or a minor public order offence), the incident in the nightclub and his behaviour in and outside the hospital. Mr Alder continued breathing in an audible and laboured fashion as before and never moved. While certain officers looked down at him from time to time, for a period of 4 minutes (03.53.16-03.57.17) no one looked at him. Apart from taking off the handcuffs, no one touched Mr Alder during the relevant time.

13 . At 03.57.17 PC Barr looked over the counter. At 03.57.25 he stated that “He ’ s not making those noises anymore”, adding that there was blood coming out of his mouth and that he was not breathing.

14 . From 03.57.48 PC Barr and, then, PS Dunn began efforts, with others, to provide medical assistance to Mr Alder. An ambulance was called, it appears, at 03.57.58. At 04.05.54 the paramedics arrived (the same who had attended Mr Alder outside the nightclub). They unsuccessfully attempted to resuscitate him and stopped at approximately 04.35. The forensic medical examiner arrived at 06.07 and pronounced Mr Alder dead at 07.20.

15 . At some stage immediately thereafter, the arresting officers left the custody suite and made notes of what had taken place. They were not required to do this separately and their notes were countersigned at the same time at 04.45.

16 . At 05.45 a conversation was recorded off camera between PS Dunn, PC Barr and Ms Winkley. PC Barr emphasised that they had been entitled to rely on the information that “the doctors kicked him out” and PS Dunn observed in reply that “but then he he ’ s.. laid face down... I mean you could say we should have put him in the recovery position”.

2. The Humberside police murder investigation (1 April - 29 April 1998) and the West Yorkshire p olice death-in-custody investigat i on (1 April –August 1998)

17 . Between 06.00 and 07.00 on 1 April 1998 a murder investigation into the assault in the night club was opened by Humberside police. Superintendent Bates was the senior investigating officer (“SIO”) and he was supported by DCI Davison.

18 . The Humberside murder investigation included the designation of the relevant site at the night club as a crime scene as well as the taking of photographs and swabs from that site. Mr Alder ’ s tooth was found. The custody area and the police van were designated as crime scenes. Photographs and swabs were taken of the van and the van was examined for fingerprints. A forensic scientist examined the van. That scientist also examined the custody suite and the tape from the custody suite was given to the investigating officers. Mr Alder ’ s flat was searched. A family liaison officer was appointed (this role being handed over to the West Yorkshire police investigation on 29 April 1998). By the end of this investigation 237 formal statements had been taken, 461 actions generated and 6,000 documents identified. It was closed when the first pathologist formally reported that the blow to Mr Alder ’ s head had not caused his death (paragraph 26 below). The computerised record of the investigation was handed to the West Yorkshire police during the Humberside investigation and after it had ended, as well as being made available to the IPCC during its review.

19 . Humberside police also contacted the Police Complaints Authority (“PCA”) in the early hours of 1 April 1998 given the death in custody. Chief Inspector Beckett (Humberside Police Discipline and Complaints Department) later confirmed to the Independent Police Complaints Commission (“IPCC”) that the West Yorkshire police had been chosen to investigate the death in custody because they were close by (“handy logistically”) and so as to return a favour owed to Humberside police. The West Yorkshire police appointed Superintendent Holt as the SIO and he was to be assisted by Inspectors Tolan and Morris. A third officer, Inspector Grubb, also assisted at some point. Their investigation officially began with their arrival at Humberside police station at 13.15 on 1 April 1998.

20 . Further to notification by Humberside police, Dr Clark (a Home Office pathologist appointed by the Coroner) observed the body in situ at 10.15 on 1 April. He carried out a post-mortem examination at 17.00 on 1 April in the presence of the West Yorkshire SIO and the Coroner.

21 . Mr Paul, having heard about Mr Alder ’ s death, voluntarily attended the police station in the evening of 1 April and was arrested for murder. On 2 April, after the initial assessment by the pathologist (Dr Clark) had been received, which appeared to indicate that the blow to Mr Alder ’ s head in the nightclub had not caused death, Mr Paul was de-arrested for murder and charged with causing grievous bodily harm with intent.

22 . Inspector Tolan later recalled (to the IPCC) that they were initially led to believe that Mr Alder had walked into the custody suite but he realised, when he saw the recordings of the custody suite on 3 April 1998, that that was not the case. The West Yorkshire SIO advised the Humberside SIO to watch the recording: the latter described his reaction (to the IPCC) as follows:

“I sat and watched it with my team. I remember silence in the room as we watched it. Every minute that went by that he laid on the floor, I was actually willing, I remember mentally willing someone to go to look at him. Eventually they did, but it seemed an age. I remember being shocked”.

23 . On 6 April a toxicology report on Mr Alder was produced. Tests for numerous drugs were negative. Alcohol was the only drug detected. On the same day the West Yorkshire SIO and an assisting Inspector went on holiday for one week.

24 . On 8 April 1998 “Regulation 7 notices” were issued to Officers Dawson, Blakey, Dunn, Barr and Ellerington (“the five officers”) to the effect that consideration was being given to bringing disciplinary proceedings against them as regards Mr Alder ’ s death. On 30 April these officers were suspended from duty. No notice was served on PC Wildbore.

25 . The five officers were interviewed by the West Yorkshire police in mid-May 1998 .

26 . On 29 April 1998 the pathologist (Dr Clark) met with the Humberside and West Yorkshire investigation teams and outlined his full findings including the cause of death (“a combination of respiratory failure and cardiac failure, a combination of the two”). It was at this point that the Humberside police investigation effectively ended.

27 . On 13 May 1998, the pathologist (Dr Clark) sent a summary post-mortem note to the West Yorkshire SIO which indicated that Mr Alder had not suffered any significant physical injuries other than those recorded by the paramedics at the nightclub. The full post-mortem examination report of 27 May 1998 found that the assault injuries on Mr Alder had not caused or contributed to Mr Alder ’ s death but had rather set in train a chain of events which eventually did. He excluded natural disease, drugs or alcohol as being the cause of death. It was most difficult, but crucial, to understand what had happened to Mr Alder in the van since:

“Either he became acutely unwell there, going from being ‘ normal ’ to unconscious within a matter of minutes, or something else happened. ... Whatever it was that happened to him, it is important to clearly identify and separate it from, anything which may have happened in the police station. Thus, he collapsed because of something which happened in the van while his actual death in the police station may or may not have been contributed to by additional factors acting there.”

28 . He described it as “impossible to know” whether medical treatment at the police station would have changed the outcome.

29 . A second pathologist ’ s report (requested by Mr Paul) was delivered by Dr Gray also on 27 May 1998. It was “indeterminable” whether death could have been avoided by earlier medical intervention. Dr. Lawlor conducted a third post-mortem (requested by the five officers). He reported that he had absolutely no doubt that the event s in the van were crucial to Mr Alder ’ s death as there was “no escape from the conclusion that his condition deteriorated from being fully conscious when put into the van to what was quite obviously, at least in retrospect, unconsciousness on arrival at the police station.” His treatment at the police station may have contributed to his death, but did not necessarily do so. A fourth post-mortem report was prepared by Dr Cooper (requested by the applicant): it suggested that the earlier assault had no direct part in Mr Alder ’ s death, that it was not possible to determine the cause of death and whether prompt medical treatment “might have affected the outcome”.

30 . On 30 June 1998 the West Yorkshire police sent an investigation report to the PCA and the Crown Prosecution Service (“CPS”). That report made 110 final recommendations with regard to disciplinary proceedings and criminal charges. It highlighted the potential failure of the arresting and custody officers to take the apparently obvious medical needs of Mr Alder into account while he lay on the floor. The report criticised the arresting officers ’ failure to question their assumptions about Mr Alder ’ s behaviour in the hospital and the apparent change after he was placed in the van. The report also queried the custody officer ’ s failure to investigate the changes in the health of the deceased between his discharge from hospital and arrival at the police station and to independently determine whether he was fit for detention. The report queried whether there was sufficient evidence upon which it could be shown, beyond reasonable doubt, that the acts and omissions of the police in the custody suite had “materially contributed” to the cause of Mr Alder ’ s death. The PCA requested a number of additional matters to be investigated, so that a short follow-up report dated 7 August 1998 was also submitted by the West Yorkshire police concerning the possible use of CS gas and the journey times from the hospital.

31 . On 10 July 1998 the criminal proceedings against Mr Paul were formally discontinued. Mr Paul then issued civil proceedings against Humberside police alleging that his arrest and charging were designed to detract attention from criticism of the police as regards Mr Alder ’ s death in custody. In January 2006 a jury found, inter alia , that on the balance of probabilities Mr Paul ’ s arrest and charging were occasioned by a desire to deflect criticism from Humberside police.

32 . On 23 July 1999 the CPS decided that there was insufficient evidence to prosecute the five officers with gross negligence manslaughter. On 6 August 1999 the five officers were served with summonses charging them with misconduct in public office. The CPS then decided to postpone the criminal proceedings pending the outcome of the inquest, a decision to which neither the Alder family nor the five officers objected.

3. The inquest (3 July-24 August 2000)

33 . On 3 July 2000 the inquest into Mr. Alder ’ s death opened and it lasted for 33 days. The applicant and her brother Richard Alder, the five officers, the Chief Constable of Humberside Police, the Local Health authority and the Ambulance Trust were represented by Counsel. Medical experts had been retained by the Alder family, Mr Paul, the five officers, the Local Health Authority and the CPS an d the inquest heard, in all, 16 medical experts. A further 38 witness statements were read. The five officers exercised their right not to answer any questions that would incriminate them in light of the outstanding criminal charges: the Coroner advised the jury not to hold this against the officers.

34 . The transcript of the Coroner ’ s summing-up ran to 280 pages and took three days. As to the last of the standard questions in the Inquisition Form (“Conclusion of the Jury as to death”), the Coroner advised the jury on the four possible conclusions open to them on the evidence, excluding an assault by the police on the applicant as the evidence did not support that.

35 . One of the four conclusions left open to the jury by the Coroner was “unlawful killing” to which the jury was advised it had to apply the criminal standard of proof. Unlawful killing as it applied to the case was described as involuntary manslaughter or manslaughter by gross negligence. The Coroner explained that involuntary manslaughter contained three ingredients: there had to be negligence (a breach of a duty of care) consisting of an act or omission; the negligence had to have caused the death more than “minimally, negligibly or trivially”; and the negligence had to be such that it could be characterised as “gross”. As to the second ingredient (causation), the Coroner summarised the evidence of the medical experts heard and guided the jury as follows:

“On the one hand, none of the experts can be sure that even if he had received the best possible immediate care in the custody suite he would have survived. They cannot rule out that on arrival at the custody suite he might have already sustained such a catastrophic medical event in [the] van that he was effectively doomed to die.

Nobody knows what happened, medically speaking, in the van and experts tell us we will never know that. If he was doomed to die, that would be because of the degree of oxygen deprivation he would have suffered.

The experts cannot be sure that his condition was survivable, although the consensus is that it probably was, and there we go again, those words “sure” and “probable”. They are very important in this case. “Sureness” is the test you have to apply to this conclusion, not “probability”.

On the other hand some experts, notably perhaps Professor Crane [State Pathologist for Northern Ireland ] and to a lesser extent possibly Dr Carey, approached this problem - and problem it surely is - from a different direction. That approach is as follows. We will never know what the cause of the unconsciousness in the van was, but we do know that Christopher was in a deleterious position on the floor and his upper airway was obstructed to some degree. Professor Crane said that no matter what the cause of unconsciousness was, death was ultimately due to upper airway obstruction from his position on the floor and inhalation of blood. It was he who suggested the immediate - and I stress the word “immediate” - cause of death as “upper airway obstruction, inhalation of blood and postural asphyxia, with head injury and alcohol contributing”. It was his opinion that whatever the reasons for loss of consciousness, the position in which Christopher was placed hastened death significantly, and both these factors were more than minimal or negligible.

I suggest you ask yourselves this question, members of the jury, as you wrestle with this difficult concept of causation: If the experts cannot be sure that his condition was survivable, come what may when he arrived at the custody suite, can you in turn be sure, as a jury, that any hastening of the death you may find by omitting to place him in the recovery position and check his airway etcetera, caused his death more than minimally, trivially or negligibly?

His death may have been hastened by his position but can you say that caused his death more than minimally if, because we do not know the cause of his unconsciousness, we cannot rule out as a reasonable possibility that he might have died shortly anyway? Can you be sure that a slight hastening - and that is what we have been talking about and that is what it might have been - can you be sure that a slight hastening, and that is what it might have been, can properly be classed as a contribution to his death that is more than minimal? That is for you to decide. ...

The essential question for you on this point is this: Can you be sure that any act or omission by any individual police officer caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death?”

36 . As to the third ingredient (whether the negligence was “gross”), the Coroner advised the jury that that meant negligence such as would demonstrate a disregard for the life of another of a kind which was properly to be described as criminal. A jury might properly conclude as to gross negligence on proof of (he repeated this and made the jury write it down):

“A. An indifference to an obvious risk of injury to health.

B. Actual foresight of the risk, coupled with the determination nevertheless to run it.

C. Actual foresight of the risk, coupled with an intention to avoid it, but involving such a degree of negligence in the attempted avoidance, that the jury considered justified conviction, or

D. Failure to advert to a serious risk, going beyond mere inadvertence in respect of an obvious and important matter, which the defendant ’ s duty demanded he should address. In respect of this fourth category, the failure to advert to a serious risk, the person owing the duty of the care must know of the risk and pay no attention to it.”

37 . On 24 August 2000 the jury unanimously answered the standard questions in the Inquisition Form as follows:

- Injury or disease causing death : “Multi factorial events leading to a level of unconsciousness which resulted in upper airways obstruction and positional asphyxia”.

- Time, place and circumstances at or in which the injury was sustained : “On 1 April 1998 in Hull, between 03.41 and 04.00 whilst in police custody, travelling in a police van from Hull Royal Infirmary and being placed on Queen ’ s Gardens custody suite floor, Christopher Alder met his death”.

- Conclusion of the jury as to the death : “Christopher Alder was killed unlawfully”.

4. The judicial review proceedings

38 . The five officers brought judicial review proceedings against the Coroner arguing, inter alia , that there was insufficient evidence upon which a jury properly directed on the law could return a verdict of unlawful killing.

39 . On 9 April 2001 Mr Justice Jackson dismissed the application ([2001] EWHC Admin 352). He acknowledged the concession of the five officers that the only live issue was whether there was a prima facie case that their acts and omissions had caused Mr Alder ’ s death. In that respect, the five officers had conceded that there was sufficient evidence upon which a jury could conclude that there was a brea ch of a duty of care owed to Mr Alder and that there had been negligence on their part. However, they disputed that their failure to provide medical assistance was a “material contributory” cause of death (the second ingredient of involuntary manslaughter). The judge referred to the Coroner ’ s summing up, noting that it was a “model of clarity”. In particular, he noted the summing up of the medical evidence and the fact that the evidence of Professor Crane alone would have enabled the jury to find causation proved to the criminal standard and that the jury was entitled to accept his views even though he disagreed with other experts in some respects. Three other experts (including Dr Clark, the pathologist appointed by the Coroner) all considered that the lack of attention to Mr Alder ’ s airway at the very least hastened death. While it was quite true that, in many respects, the doctors qualified their views with appropriate notes of caution, scientific certainty was not required even when a matter had to be proved to the criminal standard.

5. The criminal proceedings (15 April-11 June 2002)

40 . In the aftermath of the inquest the CPS continued to consider the views of their and other medical experts, including those retained by the applicant. There was a range of further medical opinions: some experts expressed a degree of certainty that the collapse in the van was occasioned by cardiac failure in which case death would have been almost inevitable, whereas other experts expressed the view that the collapse was caused by upper respiratory failure, in which case intervention in the police station would have saved Mr Alder ’ s life or otherwise substantially prolonged it.

41 . Two conferences were held with the medical experts and the CPS. The first conference (6 March 2001) was inconclusive. The second conference (9 October 2001) was attended by Professors Crane, Adgey and Hall and Dr Cary, as well as members of the CPS prosecution team, and resulted in an agreed note supporting a prosecution for gross negligence manslaughter:

“In summary, on this analysis, if the deprivation of the chance to survive amounted to more than minimal contribution to death, all the experts were agreed that they could say that the actions and inactions of the policemen did satisfy the criterion to the criminal standard of proof. Further, in any event Professor Adgey and Professor Crane were content to state that they were sure that the conduct of the policemen amounted to a more that minimal contribution to the primary cause of death, namely asphyxia. Thus far, Professor Hall and Dr Cary were minded to agree with them. It was only if the test became, ‘ was there a possibility that he would have died at about this time anyway? ’ that they could not rule this out to the criminal standard of proof”.

42 . On 24 October 2001 the CPS decided that it was now of the opinion that there was sufficient evidence to justify a count of manslaughter and formal notification was given a number of days later. In March 2002 the trial judge agreed to the CPS ’ request to add a count of gross negligence manslaughter to the indictment, in addition to the existing charge of misconduct in public office.

43 . The criminal trial of the five officers took place between 15 April and 21 June 2002. The CPS funded the attendance of the Alder family and an advisor at the trial which was to take place in a different city. The CPS also funded a barrister whose task, as part of the prosecution team, was to represent the interests of the family.

44 . The medical experts who had debated the causation issue over the previous four years gave evidence, including all expert witnesses consulted by the CPS.

45 . On 21 June 2002, at the close of the prosecution case, the trial judge dismissed both charges, not leaving either to go before the jury.

46 . As regards the gross negligence manslaughter charge, he noted that the only matter of law raised by the defence was whether there was sufficient evidence that the negligence of the police officers caused the death and he summarised the medical evidence in that respect:

“The medical evidence called by the prosecution in this case falls into two groups. The first consists of those doctors whose ultimate view is that they cannot be sure that the actions or inactions of the police contributed more than minimally to Mr Alder ’ s death. ... Within this group there are differing opinions as to the answers to the main questions which arise in the case and the level of the police officers ’ contribution to the death of Mr. Alder. But ultimately their opinions all fall short of the standard necessary for the prosecution to successfully pursue manslaughter, and on their evidence the prosecution would not have mounted.

The second group of medical witnesses ..., all of whom state that they are sure ... to the criminal standard of proof, that the conduct of the defendants more than minimally contributed to the death of Christopher Alder. On this matter they all agree although within the group also there are differing opinions on central issues, such as the cause or causes of Mr. Alder ’ s unconsciousness.”

47 . The trial judge found that the evidence of the second group of medical witnesses did not provide, either as a group or in conjunction with the first group, a prima facie case which could be left to the jury. He concluded that the evidence upon which the jury could safely convict did not show that the conduct of the defendants “more than minimally” caused Mr Alder ’ s death.

48 . The trial judge went on to dismiss the second charge of misconduct in public office. He found that the appropriate test for criminal liability under this charge was whether the officers had deliberately overlooked the risk that Mr Alder was in need of medical treatment, as opposed to merely failing to appreciate that such a need had arisen, and that test had not been fulfilled in the present case. In so ruling, the trial judge noted that, if the test for criminal liability was negligence, there would undoubtedly have been a case to answer. All of the officers were acquitted and their suspension was lifted.

49 . While there was no right of appeal , the Attorney-General sought an advisory legal opinion from the Court of Appeal to clarify the elements of the offence of misconduct in public office.

50 . On 7 April 2004 the Court of Appeal ([2004] EWCA 3) confirmed the trial judge ’ s view that the relevant test for recklessness was a subjective one ( R. v. Cunningham [1957] 2 QB 396, at 399 and R. v G. [2004] I AC. 1034, § 41) and defined the ingredients of the offence as follows:

“(1) a public officer acting as such (2) wilfully neglects to perform his duty and/or wilfully misconducts himself (3) to such a degree as to amount to an abuse of the public ’ s trust in the office holder (4) without reasonable excuse or justification. As with other criminal charges, it will be for the judge to decide whether there is evidence capable of establishing guilt of the offence and, if so, for the jury to decide whether the offence is proved.”

6. Disciplinary proceedings against the five officers

51 . Following a misconduct review, the PCA proposed the pursuit of neglect of duty charges against the five officers. On 30 September 2002 the “chief officer” (Chapter IX of the Police and Criminal Evidence Act 1984 - “PACE”), Deputy Chief Constable Clark of Humberside police, issued a decision stating that, having received legal advice, disciplinary charges would not be pursued. In order to establish disciplinary neglect it was required to show that an officer was aware that he could have done more and chose not to. While the officers had been in breach of their duty of care amounting to a neglect of their duty, the extent of their neglect did not amount to neglect deserving of a disciplinary charge against them, but it did require remedial action by way of training and guidance. While PS Dunn had not complied with his duties as a custody officer, DCC Clark recommended that he should be admonished since he had already been suspended for four years and since he had been acquitted after trial on the same evidence. DCC Clark also dismissed the issue of racism on the basis of an expert analysis of the evidence. The IPCC later described DCC Clark ’ s decision as being “as significant for what it omits as for what it includes.”

52 . By letter of 30 October 2002 the PCA replied and disagreed with the reasoning and conclusion of DCC Clark, the IPCC later describing the PCA response as a “scathing critique ... pointing out the omissions and inconsistencies in the document”. The PCA noted that the question was not whether the five police officers were aware that they should have behaved differently but disciplinary neglect would be established if they had failed to meet a standard of care that the public could reasonably expect from them. As regards the recordings in the custody suite, the PCA was struck by the lack of ordinary humanity with which the o fficers failed to respond to Mr Alder lying inert on the floor:

“They show no interest in him or his welfare; they assure themselves he is faking when they have no evidence of this; they focus entirely upon ‘ processing ’ him. They needed no special expertise to attempt to rouse him or to focus on his welfare or to at least attempt to place him in the recovery position.”

However, the PCA agreed with DCC Clark that the audio evidence (references to banana boots/boats and possible monkey noises) did not demonstrate a racist attitude on the part of the officers.

53 . The PCA therefore issued a notice under section 93(3) of PACE directing that disciplinary charges be brought against the five officers.

54 . On 28 January 2003 they were officially charged with failing to carry out their duties with due promptitude and diligence (failing to take steps to ascertain whether or not Mr Alder ’ s apparent unconsciousness was genuine or to direct others to do so or otherwise to safeguard his medical well being). Despite the PCA recommendation, no further charge about the failure to cover Mr Alder was retained. DCC Clark also decided to deny all parties legal representation: this meant that the tribunal would not have legal assistance and, further, that the highest possible sanction would be a fine, a reprimand or a caution. It was also decided that the disciplinary tribunal would comprise a single officer (DCC Clark). Subsequently, a new police officer succeeded DCC Clark in office and as “chief officer”: however, the new officer withdrew from the disciplinary tribunal since the hand-over notes from DCC Clark included a view that “the officers had suffered enough”.

55 . In May 2003 Chief Constable Price was appointed to sit as the disciplinary tribunal. The disciplinary hearing began on 19 June 2003. Despite the decision on legal representation, the defendants were assisted by police union representatives. The charges were prosecuted by a Humberside police officer. The applicant was not entitled to attend, as the then regulations provided that the hearing would be in private unless the “charge is in respect of a complaints matter” and Humberside police took the view that the applicant was not a complainant. For security reasons (press coverage and death threats received) the time and location of the tribunal hearing were not made public. Given the absence of legal representation, both sides were allowed to submit written legal presentations.

56 . The hearing began on 19 June 2003 and lasted 4 days. T he officers ’ submission that the disciplinary hearing was an abuse of process was rejected by Chief Constable Price , who was at that point only legally advised . The presenting side ’ s opening remarks were then read out followed by written statements on behalf of the presenting side . At that point, the police officers ’ representative (from the Police Federation) made a submission of no case to answer . On 24 June 2003 Chief Constable Price dismissed the charges applying a criminal standard of proof of beyond all reasonable doubt. He later accepted before the IPCC that t his ruling was incorrect, expressing frustration at the lack of legal representation.

57 . As to whether the five officers had been neglectful of the applicant, Chief Constable Price found as follows:

“When we see the video we see for 11 minutes Mr Alder lying on the floor of the custody suite and it is easy to see how that can he interpreted in so many ways. If we accept the care the officers have taken bringing Mr. Alder into the custody suite, the care in which they placed him down, does that suddenly become uncaring in that he ’ s left there or can we argue that he is in a safe position in a safe place where he is under potentially (sic) supervision and at least observation at all time. I know that in the hospital for example or indeed had he been taken to an observational cell he would have been left alone for probably 15 minutes between observations by either the medical practitioner, had it been the hospital, or by the custody staff had it been the police station. To me it has not been shown beyond reasonable doubt that the actions and inactions of the officers amounted to neglect. It is also very arguable that because of the very, very recent treatment that Mr Alder had had at the hospital, that they had good cause for their lack of action.”

58 . As to the conduct of the custody officer specifically, Chief Constable Price found as follows:

“I think this was a case where the person was drunk and treated for head injury and declared fit and was acting as if he was drunk. It is argued that Sergeant Dunn should have independently checked if he had doubts, but I must emphasise again Mr. Alder had travelled only 5 minutes from hospital where he had been examined for over an hour. It would be most unfair to judge this an error on his part rather than the hospital ’ s. As for the play-acting suggestion that could have been tested but when taken in the overall sequence of events seems plausible and given Mr. Alder ’ s previous aggressiveness the temptation to allow him to continue sleeping must have been great with the added assurance of a professional medical “okay”. Again looking at the 11 minutes on video we may question the issue of leaving Mr Alder in the condition that he was in for that period but again as with the other officers if this was a safe place and a safe position then I think we cannot prove beyond reasonable doubt that there was neglect in connection to the leaving for that period”.

59 . A similar conclusion was reached in relation to the remaining four officers. The disciplinary charges were dismissed against all five officers.

60 . Since they had been acquitted of both the criminal and disciplinary charges, no further sanction could be retained against them.

7. Review by the IPCC

61 . On 20 April 2004 the Home Secretary required the newly formed IPCC to undertake a review of the events leading up to and following the death of Mr Alder. This was not a re-investigation. The review was chaired by the Chairman of the IPCC. One of its terms of reference was to emit a view as to whether or not the approaches taken at the criminal or disciplinary proceedings may, or may not, have been different had the investigation been conducted in a different way.

62 . On 27 February 2006 the IPCC issued its report, which runs to over 400 pages plus comprehensive appendices. The IPCC conclusions on certain issues are summarised below.

63 . None of the five officers agreed to be interviewed by the IPCC. The IPCC noted their statements and interviews during the investigation: it did not criticise their exercising the right not to incriminate themselves at the inquest ( a legal entitlement ) and it accepted that they had not been called up on to give evidence at trial or at the disciplinary hearing since both hearings ended before the defence stage arose. However, the IPCC considered that they had a clear duty to cooperate with the IPCC review and that their failure to do so was “deeply disappointing”.

64 . As to the nightclub, the IPCC found that the arresting officers had not attempted to speak to Mr Alder. They adopted a conclusion that he was “well in drink” which never entirely left their frame of analysis despite information from a hospital nurse to the effect that he was not excessively drunk. They began making adverse assumptions from their earliest contact with him to the effect that his state and behaviour were voluntary or self-induced and, although he was a victim at that point, the possibility that his behaviour was induced by a severe blow to the head was not entertained by the officers.

65 . As regards the hospital, the IPCC obtained a report from the Healthcare Commission as regards the handling of Mr Alder by health care professionals during the early hours of 1 April 1998. The IPCC recognised that the behaviour of Mr Alder must have been difficult and challenging for the hospital and the officers. However, they should have been used to dealing with complex and aggressive patient presentation and the IPCC criticised his being discharged from hospital. The IPCC took issue with the fact that PC Dawson had made inquiries about whether Mr Alder was fit for detention, when he had not used violence against anyone and clearly appeared to be suffering from a number of medical difficulties. Indeed the arresting officers behaved in the hospital as though Mr Alder was already in their custody: they took him to the toilet and used force to eject him even though no one had asked them to do so. The conflict of evidence as to Mr Alder ’ s exit from the hospital between the hospital staff (Mr Alder had been dragged out) and the arresting officers (Mr Alder had walked out) was resolved by the IPCC in favour of the hospital staff. The IPCC also rejected PC Dawson ’ s statement that he had told Mr Alder that he would only be arrested if he remained in the car park of the hospital until the police van arrived. Both findings indicated that the arresting officers were not telling the truth, which suggested an element of collusion between them to present their actions in the best possible light. The IPCC concluded that Mr Alder was most probably arrested soon after he was ejected from the hospital because he was argumentative with the arresting officers and those officers wished to justify his arrest by a risk of trouble in the hospital.

66 . As to CS gas, while it had been threatened, there was no evidence it had been used.

67 . As to the van journey, the IPCC found that the only reasonable conclusion that could be drawn from the evidence, given the length of the van journey, the post-mortem evidence and the forensic evidence, was that there was no assault of Mr Alder in the van by the arresting officers. A/PS Ellerington (who drove the van) was new to the shift and was not a personal friend of the arresting officers so he was not likely to be motivated to cover up any of their actions. The IPCC considered, for various reasons, that it could not rely on the gatekeeper ’ s evidence to the effect that only PC Dawson emerged from the police car, which thereby suggested that PC Blakely had travelled in the van with A/PS Ellerington and Mr Alder. In addition, there was none of the material evidence that one would expect to see if an assault had occurred.

68 . As regards the police station, the IPCC found that the arresting officers ’ negative views of Mr Alder (notably that he was pretending) were immediately communicated and accepted without question by their colleagues. Subsequent events indicated that Mr Alder was not pretending and the arresting officers were positively misleading about this. Moreover, their view ignored real and immediate evidence including the fact that his behaviour at the police station, where he was inert, was wholly different from that at the hospital, where he was loud and vocal; that he was doubly incontinent, which suggested a dramatic loss of control; that the arresting officers were informed that he was not excessively drunk and they knew he had urinated at the hospital only minutes previously; that he was wholly irresponsive and not reactive to any stimulus even when laid face down on a hard floor with his trousers down. Indeed, the explanation of Mr Alder ’ s pretence was, itself, a form of justification for the arrest as the arresting officers were, in effect, pointing out to the custody officer that Mr Alder was a trouble maker.

69 . Turning to the custody officers, the IPCC noted that PC Barr ’ s argument that he did not wish to rouse Mr Alder for security reasons did not tally with his being handcuffed and placed face down on the floor. PC Barr ’ s suggestion that he thought Mr Alder was sleeping was inconsistent with his later exclamation that “he ’ s not making those noises anymore”. As regards the custody officer, the IPCC concluded that he had simply not complied with the duty of care which he owed to every detained person under his control. While Mr Alder had indeed just come from hospital, that officer failed to take sufficient steps to establish whether Mr Alder had been in the same inert state at hospital, despite comments by the arresting officers to the contrary.

The IPCC noted that an analysis of the actions or inaction of the officers in the custody suite did not convey the inescapable sense of shock of almost everyone who had watched the recording. The indifference to the plight of Mr Alder on the floor and

“the cynical dismissal of his obvious distress, is simply disgraceful. All of the arguments and hearings that took place have, in my view, clouded this simple truth”.

The arresting officers behaved in a “lazy, cynical and complacent way” and they were (particularly PC Dawson) “less than fully frank in their explanation of the events and their reactions in order to justify their position”. The Executive Summary of the IPCC report noted as follows:

“The most serious failings were by four of the police officers involved: Police Constable (PC) Barr, PC Blakey, PC Dawson and Police Sergeant (PS) Dunn. I believe they were guilty of the most serious neglect of duty. In the case of PS Dunn, the duty placed upon him as a custody officer was greater than that of his colleagues. I do not believe, as has been alleged by some, that any of these officers assaulted Mr Alder. Nor can it be said with certainty, such are the contradictions in the medical evidence, that their neglect of Mr Alder, as he lay dying on the custody suite floor, caused his death. However, all the experts agreed that, at the very least, the officers ’ neglect undoubtedly did deny him the chance of life. It appears that the process that has since followed has not allowed the officers to accept their failings and offer any apology for their actions.”

70 . As to the racism allegations, the IPCC determined that racism was a factor in Mr Alder ’ s treatment relying on the Report of the Inquiry into the death of Stephen Lawrence (a young black man killed in East London) chaired by Sir William Macpherson of Cluny, published in February 1999. The IPCC considered whether there was an unexplained difference of treatment, in the context of a difference in race. The IPCC criticised the inappropriate and unacceptable language used by the various officers. While there was no evidence of overt use of racist language in the custody suite and directed at Mr Alder, the making of monkey noises together with the discussion about banana boots and masks with slits indicated a further level of “unwitting racism” that ought to have been entirely absent. The custody sergeant on duty should have appreciated, even in 1998, that making monkey noises as a form of joke had the potential to be offensive and was likely to be perceived as racist and offensive whether or not it was intended to be insulting to any particular individual and the IPCC found it difficult to accept that police officers did not know the connotations of these sounds. At least one “crank” call was also found to have been made by PC Barr at 01.45 on 1 April (hours before Mr Alder ’ s arrival) to another police station in Hull pretending to be a local newspaper and enquiring about deaths in custody.

The various aspects of the officers ’ behaviour, if taken individually, might have a reasonable explanation, but taken together amounted to a pattern of “processes, attitudes and behaviour which amount to discrimination”, which pattern included: the assumption at the nightclub and the hospital that Mr Alder was under the influence of drugs or alcohol and the persistence of this view despite evidence to the contrary, while the effects of the head injury were not given sufficient weight; the willingness to believe that he was unhurt despite having been severely struck; the willingness to attribute the problems to his “bad attitude” rather than to any physical injury to him; the suggestion prior to his death in the custody suite that he was “mentally ill”; the reluctance to touch or rouse him once at the police station; the language used (that he was coloured and of negroid appearance); and the monkey imitations, the reference to a hood with slits and banana boots none of which were directed to Mr Alder, yet all of which showed an alarming potential threat.

The Executive Summary of the IPCC Report concluded on the subject of racism as follows:

“I believe these factors reflect a set of stereotypical assumptions and attitudes based on Mr Alder ’ s colour and these assumptions and stereotypes are likely to have influenced the care - or lack of it - with which Mr Alder was treated. ...

I conclude that the treatment of Mr Alder did indeed reflect the definitions of ‘ unwitting ’ racism described by Lord Macpherson. There is evidence of the “lack of understanding, ignorance or mistaken beliefs” and “well intentioned but patronising words or action” that Lord Macpherson describes. I believe we can see in the treatment of Mr Alder “processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people” and I believe this did lead to a failure to “provide an appropriate and professional service” to Mr Alder because of his “colour, culture or ethnic origin”.

Applying the test set out in the PCA guidelines, I believe there was “difference in race”, “detriment” for Mr Alder and “no explanation for these differences being available”. I cannot say for certain that a white prisoner with similar injuries would have been treated differently and better. Indeed, it has been suggested that the treatment of Mr Alder was typical of what might be found in many custody suites. This is a disturbing conclusion and not one supported by the police investigators who have viewed the CCTV footage and advised me. On balance, I think the treatment of Mr Alder was not typical. There was “difference” in his treatment.

I cannot say for certain that Mr Alder would have been treated more appropriately had he been white - but I do believe the fact he was black stacked the odds more heavily against him.”

71 . The conduct of the murder investigation by the Humberside police and death in custody investigation by the West Yorkshire police was also criticised.

The murder investigation was prioritised by Humberside police. That priority should have been reviewed late on 1 April (after the first pathologist ’ s view was transmitted) or by 3 April (when West Yorkshire officers viewed the recordings in the custody suite), but it was essentially not done until Dr Clark formally reported that Mr Alder had not been killed by the blow to his head in the nightclub. There was a lopsided approach to the investigations: the murder investigation was pursued with vigour and the West Yorkshire investigation clearly reflected, in resources and the conduct of the investigation, the lower priority accorded to it. As a result, there was insufficient rigour in establishing the independence of the death in custody investigation by the West Yorkshire team which latter team relied too heavily upon Humberside police leading to an absence of a proper forensic strategy with a tendency either to rely on Humberside or carry out non-priority work. Indeed, the jury that considered Mr Paul ’ s claim against Humberside police delivered a “damning verdict” in finding that the instruction to arrest and charge Mr Paul for murder was to deflect potential criticism of the circumstances surrounding Mr Alder ’ s death.

V arious elements conspired to undermine the impression of independence and impartiality of the West Yorkshire investigation. The appointment of the West Yorkshire team amounted to a senior officer calling a favour from his or her opposite number; one Yorkshire force was investigatin g another Yorkshire force ; and both forces worked so closely together and the West Yorkshire team was so heavily dependent on Humberside police that the difference between them was not evident to the outsider . There had been relevant changes to the law since 1998, inter alia , to remove the involvement of external or nearby police forces in the investigation of other police forces.

As to the adequacy and effectiveness of the West Yorkshire investigation, the IPCC regretted that the SIO had no prior experience in leading a death in custody inquiry and criticised the understaffing of the investigation. The inadequate size of the team also compromised the independence of its investigation as the West Yorkshire police had to rely heavily on the Humberside police murder investigation. Rather than operating transparently and separately, the Humberside and West Yorkshire forces worked so closely together that they gave the impression that they were paying lip service to the notion of independent scrutiny. The IPCC also criticised the late interviewing of officers central to the death-in-custody inquiry. It further criticised the decision to return the arresting officers ’ clothing on 3 April 1998: while the clothing was returned before watching the recording of the events in the custody suite , that return was, in any event, unjustified given the assumptions it implied in favour of the officers. That return also denied the opportunity to determine definitively whether CS gas had been used. Mr Alder ’ s clothing, destroyed on 22 July 1998, would also have been relevant as regards the use of CS gas, a possible second assault and the cause of his loss of unconsciousness. None of the officers had submitted to a medical examination and the matter was not followed up at any stage. While interviews of the officers were thought out, there were a number of questions that were not asked and no adequate consideration was given to follow-up interviews.

The IPCC concluded that:

“[ P ]erhaps more importantly, I can say with some confidence that even if the investigation had been carried out more carefully and more sensitively, the upshot would not have been markedly different. ...

If all of this had to come to pass [i.e. the identified errors had not been made], what extra evidence might have emerged? If one assumes the worst, it is possible that CS spray might have been detected on clothing of the officers or Mr Alder. Blood might have been found on the officers ’ clothing, suggesting proximity to an extra assault. Either of these elements might have assisted in the prosecution for misconduct.

Set against that, one must ask, is it likely that such evidence would have been found? The answer is no. ...

There is no basis for concluding that the trial would not have ended the same way. In all likelihood the inquest and trial would have been shortened and more focused: the failure to explain matters damaged the cases of the officers as much as the prosecution did and left them open to suggestions that West Yorkshire Police could have assisted in disproving. For this reason, the failures in investigation risked injustice to the defendants, just as it did to the family of the deceased.” (IPCC, §§9.266-9.271)”

72 . The decision by Humberside police not to pursue disciplinary charges (until obliged to by the PCA) attracted the “gravest misgivings” of the IPCC. DCC Clark, while demonstrating loyalty to the officers under his command, failed in his judgment. He had “severely restricted” the powers of the tribunal and, by so limiting the disciplinary process, he ensured that his view of the case could not be effectively reversed even though the PCA had forced the hearing to go ahead:

“These were very serious errors of judgment for a senior officer responsible for force discipline to make”.

The IPCC also found that the disciplinary tribunal (Chief Constable Price), unassisted by legal advice, made significant errors in the conduct of the hearing, notably, in allowing the Police Federation representative to introduce evidence on behalf of the five officers while making submissions of no case to answer: the tribunal failed to appreciate that the correct test at that point was not whether the case had been proved beyond reasonable doubt, but rather whether a prima fa cie case had been made out by the prosecution. Given previous concessions made during the inquest, subsequent judicial review proceedings and during the criminal proceedings, there was a strong basis to argue that there was a case to answer. Chief Constable Price had acted in good faith and had acknowledged that the lack of legal advice had “placed him in an impossible position and he now accepts that as a result he made errors in his handling of the tribunal”.

While Chief Constable Price took his duties seriously and showed commitment to the process once the disciplinary process had got underway, the IPCC disagreed strongly with Chief Constable Price ’ s observation that the result might have been the same even if the correct process had been followed. The IPCC concluded:

“ I am of the view that had legal advice been made available to Chief Constable Price at the close of the presenting officer ’ s case, and if, as should have happened, both sides had been legally represented, then the case would have gone beyond the close of the presenting side ’ s case. Whether this would have resulted in some or all of the officers giving evidence it is not possible to say. I am aware that medical evidence was prepared on behalf of the officers, although I have not seen any of the content of this evidence. Clearly, it is not possible to say how this would have influenced the final decision of the tribunal as to the disciplinary process.”

73 . The IPCC found “significant shortcomings” in the family liaison conducted by both investigation teams which undermined the confidence of the family in the inquiry as a whole. There were, inter alia , a number of “very insensitive early contacts” between the officers and the applicant.

74 . The conduct of the Inquest was not criticised. The reasons for the difference between the Inquest verdict and the criminal trial were impossible to identify since the jury ’ s deliberations were secret. Indeed, if certain case-law referred to by the trial court had been referred to by the Coroner “it was possible that the option of unlawful killing would not have been left” to the jury. It was also noted that many unlawful killing verdicts did not lead to prosecutions.

75 . As to the conduct of the prosecution by the CPS, there was no evidence to support the applicant ’ s allegations of racism or a lack of commitment or good faith. The prosecution failed because of the lack of evidence to support a manslaughter conviction and because the trial judge assessed the available evidence as regards the misconduct charges as falling short of the necessary standard for a conviction.

76 . In its overview, the IPCC identified three “major systemic failures” that went beyond the responsibilities of the individuals involved, including the fact that the failure of the police officers to assist Mr Alder was largely due to assumptions they made about him based on negative racial stereotypes and that the case represented a major failure of the police discipline system.

77 . Finally, the IPCC executive summary concluded:

“The grim conclusion 1 have reached is not that Mr Alder mattered enough to those who dealt with him on that night nearly eight years ago for them to conspire to kill him - but that he did not matter enough for them to do all they could to save him.

His death may not have mattered then but it matters now. It matters to his family, to me, and to all those who have worked with me on this Review and previously to establish the truth of what happened.

Most of all it matters because of the importance of ensuring what happened to Mr A lder does not happen again. 1 hope this report makes some contribution to achieving this goal.”

8 . Subsequent public statements by Humberside police

78 . Hours after the publication of the IPCC report on 27 February 2006, the Humberside police statement briefly addressed the Review ’ s findings:

“I will try to contextualise the accusation of “unwitting racism”. Christopher died eight years ago. There was no proper first aid training for police officers and staff. There is now. There was no specific training given to custody officers and custodians. There is now. Significant strides have been taken to ensure that diversity issues are tackled and I take a personal responsibility for leading in this area.

We have our own race relations and diversity officer and a diversity unit; then we hadn ’ t. We have implemented the Race Equality Scheme and all our policies are currently being audited to ensure compliance with the scheme. That did not exist in 1998.

We have full time qualified custody nurses in our Hull based main custody suites. We have community based Independent Advisory Groups to advise us on relevant issues. CCTV in custody suites has been upgraded ... ”

79 . On 27 March 2006 the Chief Constable of Humberside police issued a letter of apology addressed directly to the applicant:

“Christopher ’ s death has affected many people within the force and of course we know it has affected Christopher ’ s family, friends and touched whole communities in a significant way. I am sorry for the anguish that they have suffered.

I now publicly apologise fully to [Mr Alder ’ s] family and friends for his death whilst in our care. No apology will ever bring [Mr Alder] back, but I would say to [Mr Alder ’ s] immediate family, I would like to meet you privately and apologise to you.

... The time to talk about this has now surely come. I would like to meet you and I hope that you can take me up on my unconditional offer.”

9. Civil Proceedings

80 . Three civil actions were initiated as regards Mr Alder ’ s death.

(a) The first claim (the deceased ’ s sons)

81 . On 19 December 2002 civil proceedings were issued (amended in January 2003 and February 2004) in relation to Mr Alder ’ s death on behalf of Mr Alder ’ s sons in their own right, on behalf of the dependants of Mr Alder and on behalf of his estate seeking damages against twelve defendants (Chief Constables of the Humberside and West Yorkshire police; seven Humberside police officers; a West Yorkshire police officer; the CPS and the PCA) and alleging that Mr Alder ’ s death was caused by assault and/or negligence, and/or misfeasance in public office, and/or in breach of the their statutory duties and/or of the deceased ’ s right to life pursuant to Article 2 and/or Article 14 as read with Article 2 of the Convention and/or in breach of the Race Relations Act 1976. The claimants sought damages in excess of 50,000 British pounds (GBP). The claim form also refers to a claim for false imprisonment.

82 . In March 2004 “Particulars of Claim” were filed in this claim and in the third claim (described below). They listed 8 defendants and expanded on claims of assault and battery, false imprisonment, negligence and misfeasance in the treatment of Mr Alder, negligence and misfeasance in the investigation, negligence in the family liaison and race discrimination.

83 . In March 2007 these proceedings were settled on a confidential basis. The Government indicate that Humberside police would be prepared to disclose the contents of the settlement if the other parties agreed.

(b) The second claim (the applicant)

84 . On 19 February 2003 (amended in June 2003) the applicant issued civil proceedings in her own right against the same defendants (as well as one additional officer from Humberside police) seeking damages and alleging that Mr Alder ’ s death had been caused by the defendants contrary to Article 2 of the Convention; that the defendants thereafter failed to preserve evidence and investigate Mr Alder ’ s death and in so acting discriminated against the applicant contrary to the Race Relations Act 1976; breached their duty of care to the applicant and were negligent; and that the defendants ’ conduct amounted to misfeasance in public office.

85 . While the applicant initially claimed that this claim had been struck out or not proceeded with during the intervening years and was finally disposed of in December 2005, she confirmed the Government submission that on 22 October 2008 she settled her claim against the PCA for GBP 20,000 without any admission of liability. It would appear that the remainder of her action is ongoing.

(c) The third claim (the deceased ’ s sons and the applicant )

86 . On 22 December 2003 Mr Alder ’ s sons and the applicant issued proceedings on their own behalf seeking damages against the same thirteen defendants and alleging that the defendants had failed to preserve evidence and investigate Mr Alder ’ s death and in so acting discriminated against the claimants contrary to the Race Relations Act 1976; breached their duty of care to the claimants and were negligent; that the defendants ’ conduct amounted to misfeasance in public office and violated Mr Alder ’ s right to life pursuant to Articles 2 and 14 of the Convention and that the PCA violated the applicant ’ s Article 8 rights. It would appear that this action has been discontinued, at least in part.

87 . The applicant clarified that claims against the West Yorkshire police were not pursued since the House of Lords established in the meantime that common law negligence did not encompass an unreasonable failure to investigate crime ( Brooks v. Commissioner of the Metropolitan Police [2005] 1 WLR 1495).

B. Relevant domestic law and practice

1 . Inquests

88 . Section 8(1) of the Coroners Act 1988 (“the 1988 Act”) provides for a duty to conduct an inquest where a body lies in the district of the Coroner and there are grounds to suspect that the person (a) has died a violent or an unnatural death; or (b) has died a sudden death of which the cause is unknown. The inquest is to determine the identity of the deceased, and how, when and where he came by his death (section 11(5((b) of the 1988 Act).

89 . The Coroners Rules 1984 limit the extent to which an inquest can accord blame to individuals for wrongdoing or otherwise ascribe specific responsibility for death. Rule 36 of the 1984 rules requires that proceedings be directed solely to ascertaining (a) who the deceased was; (b) how, when and where he came by his death; and (c) the particulars required to register the death. Neither the coroner nor the jury may express any opinion on any other matters. Rule 42 also provides that no verdict shall be framed in such a way as to appear to determine any question of criminal liability on the part of a named person or civil liability.

2. Criminal law

90 . Gross negligence manslaughter was defined in R v. Adomako ([1995] 1 AC 171 at 187B) as follows:             

“ ... the ordinary principles of the law of negligence apply to ascertain whether or not the defendant has been in breach of a duty of care towards the victim who has died. If such breach of duty is established the next question is whether that breach of duty caused the death of the victim. If so, the Jury must go on to consider whether that breach of duty should he characterised as gross negligence and therefore as a crime. This will depend on the seriousness of the breach of duty committed by the defendant in all the circumstances in which the defendant was placed when it occurred. The jury will have to consider whether the extent to which the defendant ’ s conduct departed from the proper standard of care incumbent upon him, involving as it must have done a risk of death to the patient, was such that is should be judged criminal.”

91 . The ingredients of gross negligence manslaughter were summarised in R v. HM Coroner for Southwark ex parte Lisa Douglas-Williams ([1999] l . All ER 344 at 350) as follows:

“For gross negligence manslaughter ... there must be: (i) negligence consisting of an act or failure to act; (ii) that negligence must have caused the death in the sense that it more than minimally, negligibly or trivially contributed to the death; and (iii) the degree of negligence has to be such that it can be characterised as gross in the sense that it was of an order that merits criminal sanctions rather than a duty merely to compensate the victim”.

92 . The case of R v. Cunningham ([1957] 2 Q.B. 396, at 399) described the test for recklessness in the crime of misconduct in public office as follows:

“(a) an actual intention to do the particular kind of harm that in fact was done; or (b) recklessness as to whether such harm should occur or not (ie. the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).”

93 . Criminal liability for reckless behaviour was also discussed in R v. G ([2004] 1 A-C. 1034). That case dealt with the mens rea for criminal damage in circumstances where children had acted without giving adequate consideration to the outcome of actions likely to endanger property. Lord Bingham of Cornhill held that the Caldwell test for recklessness (identified in R v. Caldwell [1982] AC 341, HL) had focused upon risks that would have been obvious to the ordinary reasonable bystander. In R v. G the House of Lords departed from its original Caldwell test and defined the new test for recklessness under section 1 of the Criminal Damage Act 1971:

“A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to - (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.”

3. Police disciplinary proceedings

94 . At the relevant time, the complaint system in force was contained in Part IX of the Police and Criminal Evidence Act 1984 (“PACE”).

95 . Section 83 of PACE established the PCA and Schedule 4 provided the body with independent status in the sense that none of its members were allowed to be persons who were or had been a serving police constable.

96 . There were two types of procedure: one which was supervised by the police force to which the complaint had been made and one supervised by the PCA. Under s ection 87(1)(a) of PACE a complaint had to be referred to the PCA if it was alleged that it had resulted in death.

97 . The powers of the PCA in the context of a supervised complaint included a power of veto over the investigating officer (section 89(4)(a) and (b)) and a power to issue directions concerning the terms of the inquiry (section 89(5)). At the end of the investigation, the PCA was required to issue a memorandum of its satisfaction as regards the investigation (section 89(7)). Upon receiving the decision to bring criminal or disciplinary charges or not, the PCA could (section 93(3)) nevertheless direct the senior officer to bring charges. Section 93 of PACE provided as follows:

“(1) Where a memorandum under section 90 above states that a chief officer of police has not preferred disciplinary charges or does not propose to do so, the [PCA] may recommend him to prefer such disciplinary charges as they may specify.

(2) Subject to subsection (6) below, a chief officer may not withdraw charges which he has preferred in accordance with a recommendation under subsection (1) above.

(3) if after the [PCA] have made a recommendation under this section and consulted the chief officer he is still unwilling to prefer such charges as the Authority consider appropriate, they may direct him to prefer such charges as they may specify. ...

(5) Subject to subsection (6) below, it shall be the duty or a chief officer to prefer and proceed with charges specified in such a direction.

(6) The [PCA] may give a chief officer leave-

(a) not to prefer charges which section 90(10) above or subsection (5) above would otherwise oblige him to prefer; or

(b) not to proceed with charges with which section 90(10) above or subsection (2) or (5) above would otherwise oblige him to proceed.”

98 . Section 102 of PACE provided that, when the “chief officer” determined that the sanction could be dismissal, the requirement to resign or reduction in rank, legal representation would be permitted. The 1985 Regulations allowed the disciplinary tribunal to have legal advice only when the parties were legally represented. The 1985 Regulations also provided for a range of disciplinary offences including “neglect of duty”, defined as follows:

“Neglect of duty, which offence is committed where a member of a police force, without good and sufficient cause - (a) neglects or omits to attend to or carry out with due promptitude and diligence anything which it is his duty as a member of a police force to attend to or carry out. ...”

99 . Two published reports later recommended changes in the police complaints and disciplinary system: the Report of the House of Commons Home Affairs Select Committee (published on 16 December 1997) and The Report to the United Kingdom Government on the visit to the United Kingdom and the Isle of Man carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) in September 1997, published in January 2000.

100 . Amendments to the Police Act 1996 came into force on 1 April 1999 and, inter alia , lowered the standard of proof and created fast track systems to offset delay. The Police Reform Act 2002 came into force on 1 April 2004: the PCA was replaced by the IPCC. The IPCC has added powers and resources as regards investigations of complaints and management of investigations by other police forces. If the investigation is directed by the IPCC itself, the IPCC can present the case before the disciplinary tribunal and, otherwise, the IPCC is represented before that tribunal. There is also a new entitlement for interested parties and friends to attend the hearing, and for complainants to appeal against the outcomes.

4. Civil causes of action

(a) Discrimination

101 . It was possible to bring an action against the police under the Race Relations Act 1976 (“the 1976 Act”) in respect of racial discrimination if the claim fell within the provisions of the 1976 Act and, in particular, within section 20 which dealt with the provision of services to the public or a section of the public. The Court of Appeal held ( Farah v . Commissioner of Police of the Metropolis [1997] 2 WLR 824) that only those parts of a police officer ’ s duties involving assistance to or protection of members of the public amounted to the provision of services to the public for the purposes of section 20(1) of the 1976 Act.

102 . The Report of the Inquiry into the Death of Stephen Lawrence (in April 1993) chaired by Sir William Macpherson of Cluny of February 1999 made several observations and recommendations. This Report defined racism in general terms:

“Racism ... consists of conduct or words or practices which disadvantage or advantage people because of their colour, culture, or ethnic origin. In its more subtle form it is as damaging as in its overt form.”

103 . The Report defined the notion of “unwitting racism” as follows:

“Unwitting racism can arise because of lack of understanding, ignorance or mistaken beliefs. It can arise from well intentioned but patronising words or actions. It can arise from unfamiliarity with the behaviour or cultural traditions of people or families from minority ethnic communities. It can arise from racist stereotyping of black people as potential criminals or troublemakers. Often this arises out of uncritical self-understanding born out of an inflexible police ethos of the traditional way of doing things. Furthermore such attitudes can thrive in a tightly knit community, so that there can be a collective failure to detect and to outlaw this kind of racism.”

104 . The Report also defined “institutional racism” as follows:

“The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people.”

105 . On 30 November 2000 the Race Relations (Amendment) Act 2000 received Royal Assent. The aim of this Act is to bring about changes to the 1976 Act by allowing persons to bring proceedings in respect of racially discriminatory acts by, among others , the police in carrying out their public duties of law enforcement and investigation and to bring proceedings against the chief officers of police for acts of racial discrimination by officers under their command. The Act has no retrospective effect.

(b) Causes of action in damages in respect of a person ’ s death

106 . The Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(1) provides:

“If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”

107 . This statutory right of action is reserved to the deceased ’ s dependants. If there are no dependants, there is no pecuniary loss to recover as damages.

108 . The Law Reform (Miscellaneous) Provisions Act 1934 provides for the survival of causes of action for the benefit of the deceased ’ s estate. The relevant part of section 1(1) provides:

“Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate.”

109 . This enables recovery on behalf of the estate of damages for losses suffered by the deceased before he died, including any non-pecuniary loss such as damages for pain and suffering experienced between the infliction of injury and death. Where death is instantaneous, or where it cannot be proved that the deceased experienced pain and suffering before death, damages are not recoverable under the 1934 Act and the only recoverable amount would be funeral expenses.

COMPLAINTS

110 . The applicant complain ed , on her brother ’ s behalf, under Articles 2, 3 and 14 of the Convention, about his death in custody on 1 April 1998.

111 . In the first place , she complain ed under the procedural limb of Article 2 of the Convention . While she accepted that the medical evidence prevent ed her from being able to show beyond a reasonable doubt that the inaction of the officers (failure to place him in a recovery position, check his airways, administer first aid and call emergency services ) would have saved his life , she considered that the investigations did not fulfil the requirements of Article 2. In particular, she made detailed submissions about th ose investigations arguing that they lacked sufficient independence and promptitude and were in adequa te and ineffective, notably at the initial critical stages , with the result that vital evidence was lost which irrevocably undermined the possibility of the experts to reach satisfactory conclusions about the medical issues in the case.

112 . Secondly , she complain ed that the inaction of the police officers on 1 April 1998 at Humberside police station violated the substantive guarantees of Article 3 in two respects. They showed a flagrant disregard for Mr Alder ’ s basic human dignity which grossly humiliated and degraded him before others and severely undermined his dignity as a human being in the last minutes of his life in a grave and irredeemable fashion . In addition, the position in which he was left at the very least aggravated and exacerbated the speed of his demise.

113 . Thirdly , she complain ed about a breach of the procedural guarantees of Article 3 since none of the officers received a criminal or disciplinary sanction or w as even obliged to account to a tribunal . She blame d the absence of a sanction on the nature and conduct of the relevant criminal and disciplinary proceedings as well as on the serious investigative deficiencies which meant that responsibility for Mr Alder ’ s death remained a medical and forensic mystery so that the multiplicity of proceedings were , inevitably , ineffective.

114 . Fourthly, she complain ed under Article 14, in conjunction with the substantive aspect of Article 3, that the inhuman and degrading treatment of Mr Alder was part ly caused by discrimination on grounds of his race and colour.

THE LAW

115 . The applicant complained of a violation of the substantive protection of Articles 3 and 14 of the Convention as well as of a breach of the procedural guarantees of Articles 2 and 3 of the Convention.

116 . While the parties ’ observations were sought as regards, inter alia , the substantive aspect of Article 2, the applicant clarified in her observations that she did not make and does not maintain any such complaint and the Court does not consider it necessary to pursue this issue ex officio .

A . Alleged violations of the substantive aspects of Article 3 and 14 of the Convention

1. The parties ’ observations

117 . The Government maintained that the applicant could not claim to be a victim of a substantive violation of Articles 3 and 14 of the Convention . Her complaints were on her brother ’ s behalf only, the first civil claim was settled and there were pending civil proceedings initiated by the applicant herself ( Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000 ‑ I ; Hay v. the United Kingdom (dec.), 41894/98; Z.W. v. the United Kingdom (dec.), no. 34962/97, 27 November 2001; and Nikolova and Velichkova v. Bulgaria , no. 7888/03, § 56 , 20 December 2007 ) .

118 . The applicant maintained that she continued to have victim status to complain on her brother ’ s behalf. There had been no public acknowledgement or judicial finding of any breach of Mr Alder ’ s substantive rights under Articles 3 and/or 14 of the Convention.

119 . She argued that the first civil claim did not include claims of a violation of Articles 3 and 14 as regards his treatment at the police station, neither right having been directly incorporated into UK law at the relevant time. Even if tort law was in principle capable of encompassing the Article 3 complaint and even if the claim under the Race Relations Act 1976 could respond to the Article 14 complaint, the settlement of the first civil claim was confidential. Consequently, it was not known what compensation, if any, was paid. It was not known what, if any, admissions of liability were made and, if so, whether any such admissions related to conduct contrary to Articles 3 and 14 of the Convention. The applicant had been unable to obtain consent from Mr Alder ’ s sons for the disclosure of the terms of the settlement but it was also open to the Government to seek the consent of both parties to that civil claim to reveal the contents of that settlement. That the Government ’ s observations did not contain any such admissions was indicative of the fact that there had been insufficient acknowledgement of these breaches. The Grand Chamber case-law, requiring a public recognition of the violation (notably, Nikolova and Velichkova v. Bulgaria , cited above, §§ 49-51 and 55-56) was to be preferred to the earlier admissibility decisions relied on by the Government.

2. The Court ’ s assessment

120 . The Court has examined the detailed submissions of the parties and considers that the Government ’ s objection should be joined to the merits of the applicant ’ s complaints under the substantive aspects of Articles 3 and 14 of the Convention. No other ground for declaring these complaints having been established, the Court therefore declares the complaints admissible.

B. Alleged violations of the procedural aspects of Articles 2 and 3 of the Convention

1. The Government ’ s observations

121 . The Government argued that the complaints under the procedural aspects of Articles 2 and 3 were manifestly ill-founded as the domestic proceedings were cumulatively sufficient to fulfil those obligations.

122 . The inquest, the criminal trial, the disciplinary proceedings and the IPCC Review were all initiated by the State authorities.

123 . The Humberside and the West Yorkshire police investigations were promptly commenced. The inquest also began promptly and it was logical and inevitable for the criminal trial and the disciplinary actions to await the outcome of the inquest.

124 . Both the Humberside and West Yorkshire police investigations were capable of leading to the identification and punishment of any person responsible for the loss of Mr Alder ’ s life. The Humberside police investigation was thorough, comprehensive and carried out by a sizeable and experienced team of investigators, the results of which were made available to both the West Yorkshire police and the IPCC. Insofar as the physical proximity between the two police forces and the reliance by the West Yorkshire investigation team on the fruits of the Humberside police investigation gave rise to any perception of a lack of practical independence, there was a later independent inquest, criminal trial, disciplinary hearing and IPCC review. In any event, any issue as to the independence of the investigations and any forensic shortcomings of the West Yorkshire investigation were not significant since the IPCC concluded that, even if the investigation had been carried out more carefully and sensitively, “the upshot would not have been markedly different”.

125 . Although the inquest focused on the cause of, rather than the responsibility for, Mr Alder ’ s death, it was clearly an important part of the process of identifying and punishing any responsible persons and the applicant made “no criticism” of the inquest.

126 . The criminal trial provided a crucial safeguard, the five police officers being prosecuted for manslaughter and misconduct in public office. Both the criminal law and process provided the means to be able to identify and punish any culpable individuals as well as fulfilling a necessary deterrent role in preventing violations of both Articles 2 and 3. The fact that the trial ended with the jury being ordered to acquit the police officers was a reflection of the evidence before the judge and did not mean that there was any inadequacy or lacuna in the criminal law offence of misconduct in public office.

127 . The procedural obligations in Articles 2 and 3 were obligations of means and not result so that: the evidential deficiencies before the criminal court could not be equated to, or treated as, a deficiency in the substantive domestic criminal law; the negative outcome of the criminal trial did not undermine the efficacy or propriety of the trial or of the criminal law as a whole; and the lack of sanction against the relevant police officers did not as such breach the procedural obligation. As to the officers giving evidence, they were naturally able to restrict their answers when criminal proceedings were pending and they did not have to give evidence in the criminal/disciplinary hearings since both processes concluded before that stage was reached.

128 . The disciplinary proceedings provided yet another process for the identification and punishment of any culpable individuals. Whilst parts of this process were criticised by the IPCC, the latter recognised that Chief Constable Price took his duties seriously, showed commitment to the process and acted in good faith. As found by the IPCC, even if legal advice had been made available to the tribunal and even if both sides had been legally represented and the case had gone beyond the close of the presenting side ’ s case, it was still impossible to say if this would have resulted in some or all of the officers giving evidence or whether their evidence or evidence presented on their behalf would have influenced the outcome of the disciplinary proceedings.

129 . Finally, the IPCC review was the most comprehensive oversight of the incident, enabled full consideration of the conduct of all those involved in Mr Alder ’ s death and ameliorated any deficiencies in the previous processes. Through its negative findings against the five police officers, it constituted a transparent, public and permanent form of punishment for those involved in his death. Of the five police officers involved in the incident, four retired on grounds of ill-health and did not return to their jobs. The fifth had now retired.

130 . Public scrutiny was a key factor in the processes outlined above. The inquest and the criminal trial were public proceedings whilst the IPCC laid bare the entire sequence of events leading up to Mr Alder ’ s death and the processes that followed it.

131 . Finally, the Alder family were closely involved in all the key stages (the inquest, the criminal trial and the IPCC review). This made up for any shortcomings in family liaison during the course of the police investigations and the disciplinary process. In any event, even if the West Yorkshire police had put in place a better family liaison strategy the result of the investigation would not have been markedly different.

2. The applicant ’ s observations

132 . The applicant maintained that the deficiencies of the investigations were such as to breach the procedural limb of Article 2 of the Convention. She ma d e detailed submissions about those investigations arguing that they lacked independence and promptitude and were inadequa te and ineffective . Since this applied notably to their critical initial stages , vital evidence was lost which irrevocably undermined the possibility of experts resolving the medical and causation issues . This investigative failure, as well as the deficiencies of the criminal and disciplinary framework highlighted below , meant that none of the relevant police officers responsible ha d ever been sanctioned.

133 . As to lack of effectiveness of the investigation, the applicant emphasised certain failings described in the IPCC report: the failure to keep the relevant five police officers separated after Mr Alder ’ s death and to require them to make up their notes separately; the delay in questioning those police officers which, along with not keeping them separate, gave rise to a significant risk of collusion accepted by the IPCC; the delay in interviewing the key civilian witnesses; the failure to analyse the blood samples and the fingerprints from the van even though the first pathologist considered that it was crucial to understand what had happened in the van; the failure to analyse the samples taken from the corridor in the police station; and the failure to analyse Mr Alder ’ s or the police officers ’ clothes.

134 . These deficiencies were more numerous and serious than those which had led the Grand Chamber to conclude in Ramsahai that the investigation was ineffective and in breach of Article 2 ( Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 329-330 , ECHR 2007 ‑ ...).

135 . The applicant considered unconvincing the Government ’ s reliance on the belief expressed in the IPCC Report that no assault had taken place in the van. While the IPCC report concluded that the timings of the journey in the van precluded the possibility of an assault, this conclusion was not supported by certain other findings in the report (including a finding that the possibility of an assault could not be ruled out and the evidence of the gatekeeper that only one officer got out of the police car at the police station) so that an assault in the van remained possible. The applicant argued in detail that the factors relied upon by the IPCC as justifying its “strong belief” that there had been no assault in the van did not withstand scrutiny, noting that the Government had not addressed those submissions in their observations apart from arguing that they were unconvincing.

136 . The Government ’ s reliance on the IPCC finding that the outcome of the investigation would not have been markedly different even if the errors had not occurred was equally unconvincing. She considered circular the IPCC ’ s argument that it was unlikely that evidence of wrongdoing would have emerged from a compliant investigation as there was no evidence of wrongdoing. Indeed, the IPCC itself accepted that it was possible that evidence might have emerged, as regards any use of CS spray or an assault in the van. The IPCC ’ s view was also undermined by the fact that CS spray was difficult to detect in the blood stream but the investigation failed to look for traces elsewhere, by means of a proper examination of the physical evidence including blood samples from the van, fingerprints and clothing. Moreover, the IPCC ’ s view, that any emerging evidence about use of CS gas or of an assault in the van would not have cast dramatic new light on Mr Alder ’ s death, was in direct conflict with the views of pathologists who carried out the post-mortems. In any event, following the Ramsahai judgment , the fact that the existing evidence did not lead to a violation of the substantive aspect of Article 2 did not exonerate serious errors in an investigation into a death in custody.

137 . As to the lack of an independent investigation, the applicant maintained that there was no doubt that the investigation by the West Yorkshire police did not meet the required standards. She emphasised that the West Yorkshire investigation team had been brought into the case partly as they owed Humberside a favour and this was precisely how Chief Inspector Beckett of Humberside police described the position to the IPCC; the West Yorkshire investigation team did not maintain a sufficiently independent forensic or logistical status and relied on officers from Humberside police to designate and preserve crime scenes, collect, analyse and destroy all key forensic samples and to interview key witnesses; the West Yorkshire team was understaffed; the murder investigation was given priority mistakenly and for too long; there was no documented division of responsibilities between the two police forces; and the West Yorkshire investigation allowed itself to be guided by the initial accounts given by Humberside police without ever dynamically seeking to verify those accounts.

138 . The IPCC did not simply criticise the West Yorkshire investigation for failing to appear independent: its central criticisms focused on the fact that the West Yorkshire investigation was in practice both heavily dependent on, and deferential to, the Humberside police so that it carried out very little of the investigation itself and made major errors including in relation to interviewing relevant witnesses and forensic strategy. The heavy reliance on Humberside police was described by the IPCC as “wholly at odds with an independent investigation”.

139 . The applicant considered unsustainable the Government ’ s argument that these effectiveness and independence deficiencies were ameliorated by the IPCC review or were answered by the IPCC conclusion that a better investigation by the West Yorkshire team would not have led to a “markedly different” outcome. The subsequent involvement of an independent authority could not remove the taint of the initial lack of independence ( Ramsahai v. the Netherlands , § 340). The IPCC carried out a review, not a re-investigation, and vital evidence was lost initially which rendered it impossible for later domestic instances, relying on the same investigative results, to identify the precise cause of death.

140 . As to Article 3, the applicant described in some detail the manner in which her brother had been treated in Humberside police. While she accept ed that she could not prove beyond reasonable doubt that action by the officers would have saved his life , she argued that their actions and inaction amounted to treatment in violation of Article 3 given the flagrant disregard for his basic human dignity and because , at the very least, they aggravated and exacerbated the speed of his demise. Accordingly, given the seriousness of the treatment in issue, the applicant maintained that the absence of any criminal or disciplinary sanction against any police officer breached the procedural obligation under Article 3 to establish effective systems of punishment capable of deterring ill-treatment and maintaining public confidence in the rule of law. Save for the police interviews in May 1998, no police officer was required to account for his actions in any formal forum: the criminal/disciplinary processes ended before they could be called to give evidence; they declined to give evidence at the inquest; and they refused to cooperate with the IPCC ’ s review.

141 . The absence of sanction was mainly explained by the deficiencies in the criminal and disciplinary process. A civil remedy could not fulfil the State ’ s procedural obligations under this Article and the inquest, however well conducted, had no power to apportion responsibility or guilt. The absence of an appropriate criminal offence, capable of punishing the serious neglect of duty and lack of common sense and decency, was problematic: the offence of “misconduct in public office” was archaic and the subjective test set the bar so high that a successful conviction was impossible in the absence of evidence of the most extreme form of wilful neglect of duty. Structural failings in the police discipline system led to all charges being dismissed by the presiding officer on the basis of a legally flawed decision and, again, without the officers being required to give evidence. No appeal was possible. The disciplinary system also had structural shortcomings including a lack of independence and effectiveness, the applicant taking particular issue with the limited powers of the PCA and with the role and multiple powers of the presiding officer of the disciplinary tribunal. Equally serious criticisms of the police discipline system had been made by the European Committee for the Prevention of Inhuman and Degrading Treatment and Punishment (CPT) and by the former Commission ( Govell ν . the United Kingdom , App. No. 27237/95, 26 February 1997).

The inability of the criminal and disciplinary process to provide any punishment for the police officers meant that the legal framework in existence at the time of Mr Alder ’ s death fell short of the standard necessary to provide an adequate deterrence against future breaches of Article 3 ( M.C. v. Bulgaria , no. 39272/98, § 150 , ECHR 2003 ‑ XII ). While there had been substantial changes in the disciplinary process since the relevant time, the criminal law remained unchanged.

142 . The applicant also referred to the evidential deficiency caused by the investigative flaws as providing an explanation as to why the domestic procedures did not result in a sanction.

143 . The negative findings of the IPCC report did not, as the Government suggest, constitute any form of punishment for those involved in Mr Alder ’ s death. On the contrary, the IPCC ’ s attempt to counteract the impression given by the acquittal of the officers in the criminal and disciplinary proceedings itself revealed the damage done by the failings of those proceedings.

144 . As to Article 14, the applicant submitted that the impugned treatment contrary to Article 3 was in part explained by his race and colour. This was demonstrated by the following pattern of behaviour: the failure to accord sufficient weight to the effects of his head injury and the assumption instead that his behaviour was explained by drugs or alcohol even when the officers had been presented with evidence to the contrary in the hospital; the willingness to believe he was unhurt despite his having been severely assaulted; the willingness to attribute his problems to a bad attitude on his part rather than to any physical injury; the description of him as mentally ill; the reluctance to touch or rouse him once at the police station; the language used (“coloured” and “of negroid appearance”); the monkey imitations, which were repeated as Mr Alder ’ s body lay on the floor; and the references to a hood with slits and banana boots.

145 . The applicant also noted that, in finding that the pattern of behaviour by the police officers indicated racist attitudes, the IPCC observed that it could not be certain that a white person would have been treated differently and better. However, this statement did not undermine her claim that in all probability Mr Alder was treated the way he was, in part, because he was black. This was clear from the Executive Summary of the IPCC conclusions on the question of racism (paragraph 70 above).

3. The Court ’ s assessment

146 . The Court has examined the detailed submissions of the parties and considers that the applicant ’ s complaints under the procedural aspects of Articles 2 and 3 are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Furthermore, these issues raise questions of law which are sufficiently serious that their determination should depend on an examination of the ir merits . No other ground for declaring these complaints inadmissible having been established, the Court therefore declares the complaint s admissible.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Fatoş Aracı Ljiljana Mijović Deputy Registrar President