Law and Rights
The evening of 4th August 2011. At Ferry Lane (Tottenham, London), the Police intercepted and stopped a taxi (or minicab) carrying Mr Mark Duggan. Mr Duggan got out of the vehicle. Two shots were fired at Mr Duggan by one of two Police Officers confronting him. The officer who fired is referred to as V53. The other officer is W42. Mr Duggan died as a result. A handgun was found at the other side of a fence which was alongside the pavement where the Police had shot Mr Duggan. (There is also a short section of wall). These are the bare facts of this situation. Serious disorder followed this event, not only in London but in many other cities and towns. The disorder was covered extensively on this blog and elsewhere. The Police claimed that officer V53 had acted in self-defence in the honest belief that Mr Duggan was holding a gun at the time.
The following images - extracted from
the report in the Daily Mail 9th January - appear to be a reasonably accurate reconstruction of the situation when Mr Duggan was confronted by Officers W42 and V53.
In this post I do not seek to comment upon the accuracy of the jury's conclusions which have been considered, in some quarters, to be either controversial or perverse. There is no appeal mechanism from an inquest though a judicial review is possible - * Note 1. The post looks at the conclusions, the law (as set out at the inquest) and some other matters.
Media reports:
The Guardian 8th January - article by Crime Correspondent Vikram Dodd
Daily Mail 9th January
The Telegraph 9th January
The Independent 9th January
The conclusions of the jury:
On 8th January, the Inquest into Mr Duggan's death concluded that his killing, at the hands of the Metropolitan Police in August 2011, was lawful. The determination of the jury may be read via the Duggan Inquest website - see Inquest touching upon the death of Mark Duggan The Inquest website contains a link to the extensive evidence put to the court.
The jury were asked by the Coroner to answer 5 questions:
Q1. In the period between midday 3 August and when state Amber was called at 6.00 pm on 4th August 2011, did the MPS and SOCA do the best they realistically could have done to gather and react to intelligence about the possibility of Mr Duggan collecting a gun from Mr Hutchinson Foster? The jury answered NO (unanimously) together with some additional remarks which may be read via the link already provided.
Q2. Was the stop conducted in a location and in a way which minimised to the greatest extent possible recourse to lethal force? The jury answered YES (unanimously).
Q3. Did Mr Duggan have the gun with him in the taxi immediately before the stop? The jury said YES (unanimously).
Q4. How did the gun get to the grass area where it was later found? The jury said (9 to 1) that Mr Duggan threw the firearm onto the grass. Of the 9, 8 concluded that it is more likely than not, that Mr Duggan threw the firearm as soon as the minicab came to a stop and prior to any officers being on the pavement. The other one of the 9 concluded that Mr Duggan threw the firearm whilst on the pavement. The minority juror was not convinced that Mr Duggan threw the gun at all because no witnesses gave evidence to this effect.
Q5. When Mr Duggan received the fatal shot did he have the gun in his hand? This question was presented to the jury in three parts:
If you are sure that he did not have a gun in his hand then tick the box accordingly and then go on to consider unlawful killing, lawful killing or an open conclusion. A majority (8 of the 10) of the jurors were sure that he did not have a gun in his hand at this time.
If you find that it was more likely than not that he did have a gun in his hand tick the box accordingly and then go on to consider lawful killing or an open conclusion. Only 1 juror so found.
If you conclude that it is more likely than not that he did not have a gun in his hand then tick the box accordingly and go on to consider lawful killing or an open conclusion. Only 1 juror so found.
The first and last of these parts required a finding that Mr Duggan did not have the gun in his hand when he was shot. The difference lies in the degree of proof asked for: sure that he did not ... or ... more likely than not that he did not ...
(Interestingly, as a matter of strict law, even if the finding had been in favour of the second part (i.e. gun in the hand) it is possible that a jury might go on to consider the killing to be unlawful if, for example, they considered that the force used was unreasonable).
Hence, on the jury's view of the case, Mr Duggan had a gun with him in the minicab and, when confronted by the Police, did not have the gun in his hand. Somehow, the gun got to the grass on the other side of the fence/wall. The majority of the jury believed that Mr Duggan threw it there and did so from the minicab.
The law:
The Inquest touching upon the death of Mark Duggan sets out the possible conclusions: Unlawful Killing, Lawful Killing or an Open Conclusion. The Coroner set out the relevant law relating to self-defence as follows:
This appear to be an accurate statement of the law relating to self-defence: a topic which takes up considerable space in the criminal law texts. In part, this is due to (a) the need to discuss the common law principles and (b) the effect of various enactments - e.g. Criminal Law Act 1967; Criminal Justice and Immigration Act 2008 s.76. Section 76 applies whether the alleged offence took place before, or on or after, the date on which that section comes into force (i.e. 14th July 2008)..
Since 2011, the law has been further modified by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.148 (in force 14th May 2013) and the Crime and Courts Act 2013 s.43 (in force 25th April 2013).
Other points:
A) The Guardian report raises some questions about the handling of the incident.
1. The Police reporting (incorrectly) at the time that Mr Duggan had actually fired the gun at the officers.
2. The IPCC made that public to journalists, wrongly giving the impression Duggan had been killed after firing at police, without attributing the claim to the Met. One of the officers who had surrounded Duggan had indeed been hit by a bullet, which had lodged in his radio. However, it had not been fired by Duggan but by V53, before it passed through the suspect's arm and hit the officer.
3. The cab, a potential goldmine of forensic information, was driven away before being brought back.
4. Three days after the shooting, on 7 August, after Tottenham had burned and nearby Wood Green had been ransacked, the armed officers were allowed to sit together in a room at Leman Street station in east London for eight hours and write their full statements after conferring.
5. When the IPCC investigated, the officers refused to answer questions in interview, instead providing written statements.
6. The Police will also have to answer the critical comments of the jury in relation to Question 1 (above).
B) The IPCC
See the statement from the IPCC following the jury's conclusions. Also, the various other IPCC statements etc. relating to the Duggan case. At the time of writing, the IPCC investigation is on-going.
C) Behaviour in court
According to the Daily Mail and other reports, there were outbursts in the court including abuse of the jurors. This is not the first time that similar things have happened. It should not be tolerated and could be dealt with as a contempt in the face of the court. The Ministry of Justice ought to take a serious look at this matter with a view to improving security, ensuring protection of those administering justice (including jurors) and enabling the courts to conduct their business in a calm atmosphere.
E) Coroners and the law
Previous posts - 18/9/12 Coroners - Chief Coroner and updating the system and 21/9/12 The Chief Coroner's Ten Point Plan
Note 1 - the system of appeals which was set out in section 40 of the Coroners and Justice Act 2009 Act was not implemented. The government announced this in January 2012 and the Public Bodies Act 2011 section 33 repealed the provisions in the 2009 Act relating to appeals (including section 40). This still means that the only way of challenging a Coroner's decision remains judicial review in the High Court or by the process of asking the Attorney-General to go to the High Court to ask for a new inquest (Coroners Act 1988 section 13). Parliament July 2012 - Briefing Note - Challenging Coroner's Decisions
- Coroners ~ Duggan Case ~ Reports
It is reported that the Coroner (His Honour Judge Keith Cutler) who presided over the Duggan Inquest is to invite the Duggan family to 'help shape police gun policy' - The Guardian 12th January 2014. The judge, who is preparing recommendations...
- After The Duggan Case ~ Cameras; Jurors; Stop And Search
It is reported that armed Police Officers will wear video cameras - Armed British police to wear video cameras . Firearms officers in London are to start wearing video cameras to record evidence of their actions, the Metropolitan police commissioner,...
- Brief Notes On The Azelle Rodney Inquiry
Update 31st July 2014 - The former Police Officer, referred to as E7, has been charged with the murder of Azelle Rodney. See the Crown Prosecution Service announcement on this. In April 2005, Azelle Rodney (then aged 24) was shot by the Metropolitan...
- Death Of Mr Ian Tomlinson ~ P.c. Harwood Acquitted
Almost 3 years and 4 months after the event, Police Constable Simon Harwood has been acquitted on a charge of manslaughter arising from the death of Mr Ian Tomlinson on 1st April 2009. In an article in The Guardian 19th July, the Tomlinson family...
- Ian Tomlinson Inquest - Unlawful Killing Verdict
The jury at the Ian Tomlinson Inquest has delivered a verdict of unlawful killing - see the Inquest Website and The Guardian 3rd May. It now appears that the Director of Public Prosecutions (Mr Keir Starmer QC) is to review the earlier decision relating...
Law and Rights
Mark Duggan Inquest
 |
| Mark Duggan 1981-2011 |
The following images - extracted from
the report in the Daily Mail 9th January - appear to be a reasonably accurate reconstruction of the situation when Mr Duggan was confronted by Officers W42 and V53.
In this post I do not seek to comment upon the accuracy of the jury's conclusions which have been considered, in some quarters, to be either controversial or perverse. There is no appeal mechanism from an inquest though a judicial review is possible - * Note 1. The post looks at the conclusions, the law (as set out at the inquest) and some other matters.
Media reports:
The Guardian 8th January - article by Crime Correspondent Vikram Dodd
Daily Mail 9th January
The Telegraph 9th January
The Independent 9th January
The conclusions of the jury:
On 8th January, the Inquest into Mr Duggan's death concluded that his killing, at the hands of the Metropolitan Police in August 2011, was lawful. The determination of the jury may be read via the Duggan Inquest website - see Inquest touching upon the death of Mark Duggan The Inquest website contains a link to the extensive evidence put to the court.
The jury were asked by the Coroner to answer 5 questions:
Q1. In the period between midday 3 August and when state Amber was called at 6.00 pm on 4th August 2011, did the MPS and SOCA do the best they realistically could have done to gather and react to intelligence about the possibility of Mr Duggan collecting a gun from Mr Hutchinson Foster? The jury answered NO (unanimously) together with some additional remarks which may be read via the link already provided.
Q2. Was the stop conducted in a location and in a way which minimised to the greatest extent possible recourse to lethal force? The jury answered YES (unanimously).
Q3. Did Mr Duggan have the gun with him in the taxi immediately before the stop? The jury said YES (unanimously).
Q4. How did the gun get to the grass area where it was later found? The jury said (9 to 1) that Mr Duggan threw the firearm onto the grass. Of the 9, 8 concluded that it is more likely than not, that Mr Duggan threw the firearm as soon as the minicab came to a stop and prior to any officers being on the pavement. The other one of the 9 concluded that Mr Duggan threw the firearm whilst on the pavement. The minority juror was not convinced that Mr Duggan threw the gun at all because no witnesses gave evidence to this effect.
Q5. When Mr Duggan received the fatal shot did he have the gun in his hand? This question was presented to the jury in three parts:
If you are sure that he did not have a gun in his hand then tick the box accordingly and then go on to consider unlawful killing, lawful killing or an open conclusion. A majority (8 of the 10) of the jurors were sure that he did not have a gun in his hand at this time.
If you find that it was more likely than not that he did have a gun in his hand tick the box accordingly and then go on to consider lawful killing or an open conclusion. Only 1 juror so found.
If you conclude that it is more likely than not that he did not have a gun in his hand then tick the box accordingly and go on to consider lawful killing or an open conclusion. Only 1 juror so found.
The first and last of these parts required a finding that Mr Duggan did not have the gun in his hand when he was shot. The difference lies in the degree of proof asked for: sure that he did not ... or ... more likely than not that he did not ...
(Interestingly, as a matter of strict law, even if the finding had been in favour of the second part (i.e. gun in the hand) it is possible that a jury might go on to consider the killing to be unlawful if, for example, they considered that the force used was unreasonable).
Hence, on the jury's view of the case, Mr Duggan had a gun with him in the minicab and, when confronted by the Police, did not have the gun in his hand. Somehow, the gun got to the grass on the other side of the fence/wall. The majority of the jury believed that Mr Duggan threw it there and did so from the minicab.
The law:
The Inquest touching upon the death of Mark Duggan sets out the possible conclusions: Unlawful Killing, Lawful Killing or an Open Conclusion. The Coroner set out the relevant law relating to self-defence as follows:
: The law as set out for the jury : Unlawful.You have to be sure that the act was unlawful -that is that it was not done in lawful self defence or defence of another or in order to prevent crime. It is not for V53 to prove that he did act lawfully ? before you conclude that his act was unlawful, you must be sure that it was unlawful. Any person is entitled to use reasonable force to defend himself or another from injury, attack or threat of attack. If V53 may have been defending himself or one of his colleagues then go on to consider two matters 1) Did V53 honestly believe or may he honestly have believed, even if that belief is mistaken, that at the time he fired the fatal shot, that he needed to use force to defend himself or another; if your answer is NO then he cannot have been acting in lawful self defence and you can put that issue to one side; if your answer is YES then go on to consider 2) Was the force used ? the fatal shot ? reasonable in all the circumstances? Obviously if someone is under attack from someone he genuinely believes is violent and armed ? then that person cannot be expected to weigh up precisely the amount of force needed to prevent that attack. But if he goes over top and acts out of proportion to the threat then he would not be using reasonable force and his action would be unlawful. The question whether the degree of force used by V53 was reasonable in the circumstances is to be decided by reference to the circum stances as V53 believed them to be ? but the degree of force is not to be regarded as reasonable in the circumstances as V53 believed them to be if it was disproportionate in those circumstances. (Alternatively a police officer may use lawful force to prevent crime. Here two points arise 1) Did V53 shoot Mark Duggan in order to prevent crime and 2) Was the force used reasonable or unreasonable in all the circumstances? |
This appear to be an accurate statement of the law relating to self-defence: a topic which takes up considerable space in the criminal law texts. In part, this is due to (a) the need to discuss the common law principles and (b) the effect of various enactments - e.g. Criminal Law Act 1967; Criminal Justice and Immigration Act 2008 s.76. Section 76 applies whether the alleged offence took place before, or on or after, the date on which that section comes into force (i.e. 14th July 2008)..
Since 2011, the law has been further modified by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 s.148 (in force 14th May 2013) and the Crime and Courts Act 2013 s.43 (in force 25th April 2013).
Other points:
A) The Guardian report raises some questions about the handling of the incident.
1. The Police reporting (incorrectly) at the time that Mr Duggan had actually fired the gun at the officers.
2. The IPCC made that public to journalists, wrongly giving the impression Duggan had been killed after firing at police, without attributing the claim to the Met. One of the officers who had surrounded Duggan had indeed been hit by a bullet, which had lodged in his radio. However, it had not been fired by Duggan but by V53, before it passed through the suspect's arm and hit the officer.
3. The cab, a potential goldmine of forensic information, was driven away before being brought back.
4. Three days after the shooting, on 7 August, after Tottenham had burned and nearby Wood Green had been ransacked, the armed officers were allowed to sit together in a room at Leman Street station in east London for eight hours and write their full statements after conferring.
5. When the IPCC investigated, the officers refused to answer questions in interview, instead providing written statements.
6. The Police will also have to answer the critical comments of the jury in relation to Question 1 (above).
B) The IPCC
See the statement from the IPCC following the jury's conclusions. Also, the various other IPCC statements etc. relating to the Duggan case. At the time of writing, the IPCC investigation is on-going.
C) Behaviour in court
According to the Daily Mail and other reports, there were outbursts in the court including abuse of the jurors. This is not the first time that similar things have happened. It should not be tolerated and could be dealt with as a contempt in the face of the court. The Ministry of Justice ought to take a serious look at this matter with a view to improving security, ensuring protection of those administering justice (including jurors) and enabling the courts to conduct their business in a calm atmosphere.
E) Coroners and the law
Previous posts - 18/9/12 Coroners - Chief Coroner and updating the system and 21/9/12 The Chief Coroner's Ten Point Plan
Note 1 - the system of appeals which was set out in section 40 of the Coroners and Justice Act 2009 Act was not implemented. The government announced this in January 2012 and the Public Bodies Act 2011 section 33 repealed the provisions in the 2009 Act relating to appeals (including section 40). This still means that the only way of challenging a Coroner's decision remains judicial review in the High Court or by the process of asking the Attorney-General to go to the High Court to ask for a new inquest (Coroners Act 1988 section 13). Parliament July 2012 - Briefing Note - Challenging Coroner's Decisions
- Coroners ~ Duggan Case ~ Reports
It is reported that the Coroner (His Honour Judge Keith Cutler) who presided over the Duggan Inquest is to invite the Duggan family to 'help shape police gun policy' - The Guardian 12th January 2014. The judge, who is preparing recommendations...
- After The Duggan Case ~ Cameras; Jurors; Stop And Search
It is reported that armed Police Officers will wear video cameras - Armed British police to wear video cameras . Firearms officers in London are to start wearing video cameras to record evidence of their actions, the Metropolitan police commissioner,...
- Brief Notes On The Azelle Rodney Inquiry
Update 31st July 2014 - The former Police Officer, referred to as E7, has been charged with the murder of Azelle Rodney. See the Crown Prosecution Service announcement on this. In April 2005, Azelle Rodney (then aged 24) was shot by the Metropolitan...
- Death Of Mr Ian Tomlinson ~ P.c. Harwood Acquitted
Almost 3 years and 4 months after the event, Police Constable Simon Harwood has been acquitted on a charge of manslaughter arising from the death of Mr Ian Tomlinson on 1st April 2009. In an article in The Guardian 19th July, the Tomlinson family...
- Ian Tomlinson Inquest - Unlawful Killing Verdict
The jury at the Ian Tomlinson Inquest has delivered a verdict of unlawful killing - see the Inquest Website and The Guardian 3rd May. It now appears that the Director of Public Prosecutions (Mr Keir Starmer QC) is to review the earlier decision relating...