For those who sat through the three-month inquest into the death of Mark Duggan it seemed incongruous that the contradictory evidence presented could result in a lawful killing verdict. That a jury could conclude that it was lawful to shoot an unarmed man only furthers the sense that in cases where police confront black men, lethal force is used as a first resort. Combined with an existing perception that officers have impunity, the verdict last month sent a message that the deceased was always a ‘dead man walking’ who could not have prevented his death once confronted. This message was further conveyed by large sections of the media which instead of questioning the necessity of the force used, tended to blame the deceased. The London Evening Standard’s editorial on the verdict, for example, stated: ‘nobody can be too surprised in such circumstances when criminals of this kind come to a sticky end.’
As in a number of previous inquests into police shootings in the UK, a verdict of unlawful killing relied on the jurors concluding on the balance of probabilities that the officer who fired the fatal shot did not have an honest (even if mistaken) belief that he was in imminent danger of being shot. This is a subjective test which leaves aside how police officers arrive at their ‘honestly-held’ beliefs. The role that racial profiling might play, however, should be an urgent question, if not for a jury, then certainly for our public institutions and media. According to the action group StopWatch: ‘There is a documented and widespread tendency for police officers to think of people from ethnic minorities as crime prone, disorderly and with tendencies towards violent behaviour and drug taking.’ In its submission to the 2013 Home Office consultation on police use of stop and search powers, the group noted that ‘The statistical data on racial disproportionality in stop and search is consistent with the very extensive research on racism, racial stereotyping and racial discrimination in police work.’
Analysis from the most recent 2011 census data shows that, in relation to ‘reasonable suspicion’ stop and searches, black people were stopped and searched at 5.6 times the rate of white people and Asian people were subject to stop and search at 1.8 times the rate.’ In separate research commissioned by the Guardian last year, academics at Oxford University found that black and Asian people were subjected to nearly one-and-a-half million more stop and searches in the ten years after the Macpherson inquiry than they would if the police had treated them the same as white people. This disproportionality continues throughout the criminal justice system, with people of Afro-Caribbean descent subject to court proceedings for drug possession offences, for example, at 4.5 times the rate of whites found guilty of the same offence, and subject to immediate custody at five times the rate. Reacting to the Guardian research on racial profiling, one MP claimed that it showed ‘policing by fear’. There are deadly consequences to this ‘fear’: since 1990, London’s Metropolitan Police (MPS) have shot to death 21 people, and 249 have died in their custody (over a quarter of the national total). Of those shot to death by the MPS, Black and Minority Ethnic deaths have accounted for one third. Of the 13 unlawful killing verdicts since 1990 – three of which were subsequently quashed or overturned – ten were for the deaths of black men following contact with the police. To date there have been no successful prosecutions of any police officers.
Police accountability in relation to racism
It is little surprise against this background of institutional racism that black communities, particularly those from Afro-Caribbean backgrounds, have low levels of confidence in the police and the police complaints system. This is evident in available statistics on public confidence provided by the Crime Survey for England and Wales and the Independent Police Complaints Commission (IPCC), but such sources provide a muted picture compared to the reality seen and felt at a community level.
A Freedom of Information request by the Mirror revealed that of 2,720 complaints of racism made between 2005 and mid-2011 against the Metropolitan Police by staff members and the public, only two officers lost their jobs – and they were ‘forced to resign’ on full pension rather being sacked. Of the remaining complaints, only 42 were ‘substantiated’, while 816 were ‘unsubstantiated’ and 572 were ‘locally resolved’, a process often criticised as providing only low-level sanction against officers. A further 456 allegations of racist behaviour were made against Metropolitan officers in 2012; again, more than half were found to be unsubstantiated, were locally resolved or withdrawn.
The IPCC came under pressure to set up an inquiry looking into 60 referrals of incidents between April and May 2012 and complaints from 2011 in relation to racism, and noted that ‘too often, complaints are dismissed without proper investigation or resolution’. Even cases that appear to provide irrefutable independent evidence of racism do not result in criminal sanctions. With Newham Monitoring Project’s support, Mauro Demetrio released an audio recording to the media of the racial taunting he was subjected to in the back of a police van in 2011 by Metropolitan PC Alex MacFarlane, who told him: ‘You’ll always be a nigger.’ The recording highlighted an experience frequently reported by black communities. Demetrio’s case was initially dismissed by the Crown Prosecution Service as insufficiently strong to bring a charge of racial abuse. Following a public outcry in response to the media’s dissemination of the recording, the CPS then reversed their decision and the case came before the courts. PC Alex MacFarlane faced trial for racially aggravated public disorder, but the judge dismissed the case after two juries were unable to reach a unanimous decision. Under these rare conditions of public scrutiny, the MPS later discharged MacFarlane for gross misconduct in separate misconduct proceedings in July 2013.
Key contradictions in the Mark Duggan case
As Stafford Scott wrote in a Guardian op-ed following the Duggan verdict, the ‘perverse and contradictory’ verdict the jury delivered, ‘neither fits the known facts nor chimes with the testimony of the independent witnesses.’ The officer who fired the fatal shots, known only as ‘V53’, said at the inquest that he saw a sock-covered gun in Duggan’s hand, which he was raising to shoot. The officer fired the first shot, hitting Duggan in the right chest. V53 said this caused Duggan to spin round so that the gun barrel was pointing towards him. He then fired a second shot, hitting Duggan in the biceps and causing him to fall backwards.
Two other officers testified to seeing the gun drawn and in Duggan’s hand. Forensic evidence, however, did not support this testimony, and other expert evidence suggested the police account was incorrect. Independent witness ‘B’ repeatedly insisted that it was a Blackberry that Duggan was holding in his hand and that he was surrendering when he was shot. Duggan’s DNA was found neither on the sock nor the gun, although his fingerprints were found on the lid of the box that the gun was allegedly transported in. The jury’s conclusion that Duggan had thrown the gun before, or on, exiting the mini-cab was unsupported by any witness statements. Furthermore, writes Scott:
The IPCC has chosen not to explore the possibility that the gun was planted at the spot it was found, even though… two independent witness gave the IPCC statements – and later testified – that they had seen an officer remove a gun from the mini-cab some minutes after Duggan had been killed.
The police said they found the gun three to seven metres from Duggan’s body on the grass on the other side of a fence. The sergeant in charge wrote in all of his statements that he told three armed response PCs to secure the weapon on the grass as soon as they arrived, but that officer could not have been sure there was a gun, let alone known its location. The coroner described this discrepancy as ‘a stark problem’. Ceasefire's Adam Elliott-Cooper underlines the lack of evidence supporting the verdict: ‘despite no witness testimony, and no DNA evidence, they [the jury] concluded that Duggan must have had the gun, and thrown it into the bushes where it was found, without the taxi driver, general public, or the police in pursuit of him, ever noticing.’
By way of contrast, the unlawful killing verdict returned at the inquiry into the 2005 death of Azelle Rodney was reached after the written accounts and oral evidence of the police officer who shot him were contradicted by eye-witness testimony and DNA evidence. It found that when Rodney was shot six times by police he was not holding a gun, and had not handled the firearm found in the vehicle in which he was a passenger. Elliot-Copper notes that: ‘Without the media fanfare creating a moral panic around shoot-outs, gangsters and “one of the 48 most dangerous men in Europe”, the public inquiry [into Azelle Rodney’s death was] left only with its aims, and the evidence presented.’ In that case, while accepting that the MPS was acting on intelligence that believed Rodney was one of three armed and dangerous men travelling by car to commit a robbery, the inquiry report asked whether the officer who fired the fatal shots ‘believed, for good reason,’ that Rodney presented a threat to his or his colleagues’ lives such that it was proportionate to use lethal force. The report concluded that the officer did not, rejecting his consistent accounts that Rodney was holding a weapon likely to be a machine gun: ‘Prior to firing he did not believe that the man who turned out to be Azelle Rodney had picked up a gun and was about to use it. Further, on the basis of what he was able to see, he could not rationally have believed that.’
Politically contentious cases
Anne Owers, chair of the IPCC, has said in letter to the Guardian (14 January 2014) that a key feature of the Duggan investigation was the fact that the firearms officers refused to answer questions: ‘The law has now changed and we can compel officers to come in for interview. However, they can and still do refuse to answer questions verbally at interview.’ This effort to prevent scrutiny and accountability has been seen before in other cases in which officers have refused to give statements under caution and investigations have been flawed from the outset, marred by lost evidence, public misinformation and smears against the deceased.
Christopher Alder, who sustained a head injury as a result of an assault in 1998, was arrested to ‘prevent a breach of the peace’, dragged handcuffed and unconscious out of hospital and left to die on the floor of a police custody suite as five officers looked on. The officers present at the time of Alder’s death refused to take part in the Police Complaints Authority (the predecessor body to the IPCC) inquiry into his death. At the subsequent inquest they were called to give evidence, but on more than 150 occasions refused to answer questions, citing Coroners Rules that their responses could provide self-incriminating evidence. Following an unlawful killing verdict, the officers went on trial accused of manslaughter and misconduct in public office, but were cleared on the orders of the judge.
No inquest was held into Azelle Rodney’s death in 2005 because the Coroner decided that relevant intelligence material could not be shown to him or a jury. Seven years later a public inquiry was held instead. The inquiry’s 2013 report summarises the institutional failings:
The MPS failed to conduct a debrief of the SFOs to see what, if anything, had gone wrong or whether there were lessons to be learned. The Independent Police Complaints Commission (‘IPCC’) investigated the incident but found nothing to criticise. It provided a report to the Crown Prosecution Service (‘CPS’), which decided to bring no prosecutions.
An early attempt was made to prevent the 2005 fatal shooting of Jean Charles de Menezes from reaching the IPCC. In a letter to the Home Office released by the MPS under the Freedom of Information Act, Commissioner Sir Ian Blair described his instruction that the IPCC ‘will be given no access to the scene at the present time.’ It had been suggested that de Menezes fled from officers when he was challenged and vaulted over the ticket barrier into Stockwell underground station, an account disputed by the family of de Menezes. This account was eventually revealed to have emanated from police sources and allowed to circulate unchallenged in the public domain, despite police and the IPCC being aware it was incorrect. At the 2009 inquest into de Menezes’s death, the MPS spent £1.3m on five different legal teams for various officers and departments in an attempt to prove that their operation was lawful. The jury, however, rejected the police account and returned an open verdict – the only option they were given after the coroner ruled they could not find that de Menezes was illegally shot dead by officers. While the family felt vindicated, in a statement they reiterated their belief that the Coroner did not conduct a fair or impartial inquest and their access to justice had been repeatedly blocked:
For 3 ½ years we have had one simple request, that all the evidence be put in front of the jury and for them to be allowed to decide. The questions left for the jury were limited in scope and were biased in the way they were written. As the inquest progressed it became more and more clear to us that the Coroner was clearly on the side of the police. That is why with deep regret and frustration we had to instruct our lawyers to leave the process.
Harry Stanley, a white man of Scottish descent, was shot dead in 1999 by Metropolitan police officers who thought the table leg he was carrying was a gun. A member of the public had made a 999 call reporting that a man with an Irish accent had left a pub in Hackney with ‘what actually looks like a sawn off shotgun’ wrapped in a bag. When a year later the CPS announced its decision that no officer was to face criminal charges over the death on the basis that the officers ‘honestly’ believed that they were at risk, Inquest wrote in its report on the shooting that:
The CPS appears to suggest that if police officers believe that a person is armed they will inevitably have to end up shooting that person. This suggestion is absurd and if it were true would be extremely frightening for us as members of the public.
In 2002 the initial inquest into the death returned an open verdict, but that was quashed by the high court in 2003 and a second inquest was ordered, which returned an unlawful killing verdict. At a third inquest in 2005, the coroner, having stated that ‘an honest belief of imminent danger such that it was necessary to use force does not have to be reasonable; the test is subjective not objective,’ quashed that verdict. On 9 February 2006, the IPCC published their report into the incident, recommending that no further disciplinary action be taken against the officers.
These judicial proceedings and internal investigations took place against a background of media-supported institutional attempts to smear Stanley’s character. At the 2002 inquest the Coroner called as a witness the officer in charge of the PCA investigation into the shooting and asked him about Stanley’s previous convictions. Ordering a new inquest in 2003, the Coroner stated that this irrelevant issue ‘is likely to have influenced the jury to have lowered their opinion of Mr Stanley and to have led the jury to be more likely to excuse or to justify the decision of the officers to shoot Mr Stanley in the way that they did. Indeed, both those features undermined the functions that the inquest should have performed, where, as in this case, the police have been responsible for his death.’ One report by the Sunday Telegraph in 2005 claimed that Stanley deliberately set out to get himself killed by the police in a ‘suicide by police’ attempt, describing the victim as a man ‘who had convictions for armed robbery, grievous bodily harm and possession of drugs,’ the paper repeated absurd claims that he ‘had planned to be shot by police marksmen.’
Blaming the victims
Right-wing commentators tend to accept that a police shooting is the unavoidable response of authority confronting violent disorder. In the immediate aftermath, police bodies frequently appear to seek to deflect criticism from the confirmed act of violence – theirs – onto the alleged actions of the victim. Their task is made easier if the victim is from an ethnic and/or class background that sections of the press reflexively associate with threatening, self-destructive behaviour.
Following the shooting of Mark Duggan, the IPCC admitted it might have ‘inadvertently’ misled the media into believing Duggan had shot at police and died in an exchange of fire. Willingly misled as an urban revolt spread across the country, Katharine Birbalsingh wrote in a 7 August 2011 blog post for the Telegraph (for which no correction has been issued):
Mark Duggan is dead. He was shot by the police in a shootout… Either Duggan was shooting at the police or the driver of the minicab was. Either Duggan was in the wrong place at the wrong time and his death is a terrible tragedy – he was caught in the crossfire – or he shot at the police and the police defended themselves. Whatever the explanation, the police did not kill this man in cold blood.
Within days of his death at the hands of the police, Duggan had been cast in the menacing role of a black gangster who lived by a ‘street code of vengeance that sparked the riots’. For the Telegraph it was enough to repeat, in the wake of the inquest verdict, the police description of Duggan as a ‘known gangster who lived by the gun’, and to use the legalistic-sounding phrase ‘reasonable grounds to suspect that he was armed and dangerous’ in support of the lawful killing verdict, regardless of the fact that the jury stated it was their belief that Duggan was not holding a gun when an officer fatally shot him. There is no suggestion in the right-wing media that this verdict puts us all in danger, rather it is argued the victim’s alleged marginal lifestyle choices make death at the hands of the police not only necessary but natural; the fatal shooting of Mark Duggan is seen to have grown – organically – out of his suspected criminality: ‘Gangsterism, not racism, was the root of Mark Duggan’s shooting’.
Some sections of the press, reporting on the Duggan family’s shocked response to the verdict, seized on the moment to attack and criminalise black and working class communities. The Daily Mail’s Richard Littlejohn attacked Carole Duggan for ‘her severe “council estate face-lift” swept-back hairdo’, (alongside a racist caricature of the family with their faces split down the middle – one half black, the other white) and claimed that:
If the Met can scour the internet for perpetrators of alleged “hate crimes”, they should be able to spot a few violent thugs bang to rights in the public gallery at the Royal Courts of Justice…. The ferocious Carole Duggan, sister-in-law of Manchester’s most notorious gangster, was doing the rounds again yesterday.
Reacting to the family’s criticism of the inquest jury, and employing its familiar tone of social condescension, the Telegraph deftly implied that the Duggans were not fully citizens of this country, where deference to judicial process is a local custom understood by all. The lawful killing verdict ‘was the conclusion of a jury after a 12-week inquest – and it is traditional in this country to accept a jury’s verdict in such matters. Duggan’s family, however, feels differently.’ In a separate Telegraph op-ed, the Duggan family’s emotional response to the verdict was pathologised as the improper behaviour of psychologically disturbed thugs:
The scenes at the Mark Duggan inquest, in which supporters of the deceased threatened the jurors with violence, were the predictable outcome of a decreasing public appreciation that courts are supposed to dispense impersonal justice, not group psychotherapy by means of the ventilation of feelings…The observance of a moment’s silence for Duggan before the proceedings in the coroners’ court was an instance of authority paying ‘respect’, in the sense of fear of thuggery.
Tottenham MP David Lammy lent legitimacy to the press campaign to smear the family and their supporters as delinquents when he spoke on the BBC Andrew Marr Show about his decision not to attend a peaceful community vigil the weekend after the inquest result: ‘I will not share a platform with anarchist groups and people that do not accept that a jury laboured and reached a verdict… There is a legal process that continues, there is an IPCC investigation, and it is my job to continue to put pressure on that organisation.’
A first inquest result is sadly often only the start of a longer process for uncovering the truth and a case such as Duggan’s, that carries severe reputational damage to the state if they are found guilty of wrongdoing, presents the toughest barriers to those who seek accountability. Carole Duggan has claimed the IPCC was ‘incompetent’, but said, ‘We do need to go back to the IPCC. We have a lot of questions for them. We really do need a thorough investigation. It’s clear the IPCC didn’t do that in the beginning. If they had done that, the jury may have come to a different conclusion.’ Given the inequalities embedded within the criminal justice system and the patterns of biased reporting, family-led justice campaigns provide a rare and informed counterbalance to official narratives. Pressure on grieving families to fulfil this role though is an unfair burden that must be shared with others. For any future justice to prevail, it is paramount that the family can continue to rely on visible and vocal support at a community level that challenges the ‘gang culture’ of the police, courts, media and parliamentarians whose tendency to excuse state-sanctioned violence poses the greatest of threats to safety and equality on our streets.
Estelle du Boulay is director of the independent anti-racist organisation Newham Monitoring Project (NMP); Eleanor Kilroy is a NMP volunteer.