MENSON v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicants are Alex, Chris, Daniel, Essie, Kwesi and Samantha Menson. They are siblings of Michael Menson, a black man who was killed as a result of being set on fire by assailants in a racist attack during the night of 27-28 January 1997. The applicants are all British nationals living in England. They are represented before the Court by Bindman & Partners, a firm of solicitors practising in London, England. At the time of his death, Michael Menson was a single thirty-year old black man. He suffered a mental breakdown in 1991 and was subsequently diagnosed and treated in hospital for schizophrenia. After March 1996, Michael Menson frequently received treatment at Chase Farm Hospital for his mental condition. When Michael Menson was not in hospital he lived in his own accommodation in New Southgate, London. However, two months before his death he moved into accommodation for persons with mental health problems at Holden Lodge, North London. On about 21 January 1997, Michael Menson was given leave from Chase Farm Hospital and went to stay at Holden Lodge. On the night of 27 January 1997, at about 10 p.m., Chie Menson telephoned Michael Menson at Holden Lodge. She told him that she had received a message from Chase Farm Hospital that he was to return there as soon as possible for his “ward-round”. Some time after that telephone call Michael Menson left Holden Lodge with the apparent intention of returning to Chase Farm Hospital. It appears that having left Holden Lodge, Michael Menson took the wrong bus for his destination and he ended up getting off the bus in Edmonton, North London. He was subsequently attacked by four white youths who had got off the bus with him. They set his back on fire, probably whilst he was lying face down on the ground. He was found on fire at approximately 1.40 a.m. on 28 January 1997 by an off-duty fireman who had been passing by in a car. At the time he was found, Michael Menson appeared to be in a severe state of shock with severe burns to his back, buttocks and upper thighs. The off-duty fireman flagged down a passing police car with two police officers in it. They in turn summoned an ambulance. According to the applicants, the two police officers did not treat the circumstances of Michael’s discovery as suspicious and wrongly assumed that he had set fire to himself. Consequently, they failed to investigate the crime scene at all at that stage or to set in motion any trains of inquiry to search for or identify and catch Michael Menson’s attackers. It was only after specific instructions from Michael Menson’s family at a later stage that the police began to treat the attack as suspicious and to investigate it. An ambulance arrived and Michael Menson was taken to North Middlesex Hospital where he was admitted and treated. It seems that the police officers left the scene of the incident when Michael Menson was taken to hospital. Michael Menson was found to have sustained full thickness third degree burns to 30% of his body. Owing to the severity of his burns, he was transferred to the Regional Burns Unit in Billericay Hospital. Sometime between 2 a.m. and 3 a.m. on 28 January 1997, two officers arrived at the house of Ezekial Adewale, Michael Menson’s friend, in the mistaken belief that he was Michael Menson’s next-of-kin. It appears that the police had made this mistake as a result of inquiries to Chase Farm Hospital where Ezekial Adewale’s name and address were obtained. The two police officers told Ezekial Adewale that Michael Menson had set himself on fire whilst walking along the North Circular Road in North London. The officers repeated this and stated that Michael Menson had been lucky because they had been passing, saw him on fire and had stopped and helped to extinguish the fire. Ezekial Adewale asked these officers if they had informed Michael Menson’s family. They told him they had not and he immediately gave them the address of Michael Menson’s brothers, Kwesi and Daniel. Shortly afterwards, again sometime between 2 a.m. and 3 a.m., the same two police officers arrived at Kwesi and Daniel Menson’s home. The police officers told them that Michael Menson had set himself on fire in Edmonton, that he had been seriously injured and had initially been taken to the North Middlesex Hospital but had been subsequently transferred and was receiving treatment in the Regional Burns Unit in Billericay Hospital. The officers then asked Kwesi Menson to sign for some charred papers and two burnt keys which had been found on Michael Menson’s person and asked him whether Michael had been on medication or whether he had a mental health background. Kwesi and Daniel Menson immediately went to Billericay Hopsital sometime around 3 a.m. They could not see Michael Menson at first because he was still receiving treatment for his burns. At about 11 a.m. they were allowed to see him briefly. He appeared alert and lucid and was able to answer their questions. Kwesi Menson asked his brother what had happened and Michael replied that he had been attacked by four white boys. Michael Menson’s explanation to his brother conflicted with the report given by the police officers and so Kwesi Menson telephoned Edmonton Police Station at approximately 11.30 a.m. on 28 January 1997. He spoke to a police officer and told her that Michael Menson had told him that he had been attacked by four white boys. On the evening of 28 January 1997, Alex Menson telephoned the hospital and was able to speak to Michael. Once again, although in pain, he was lucid and able to tell his sister about his recollection of the incident. He said that he remembered catching a bus in the wrong direction and that there had been four white boys on the bus, one of whom had been wearing a black leather jacket. He had got off the bus at the same stop as these white boys and followed them to ask for directions. He remembered that shortly after this he was leaning against something and then had felt something on his back. He then discovered that he was on fire and started to take his clothes off. Following this conversation Alex Menson spoke to the ward sister at the hospital and a consultant treating Michael Menson and received confirmation that there were no contra-medical indications preventing Michael from being interviewed by the police. She also made requests to the police that they should come and interview Michael Menson about the attack. Over the next 48 hours, Kwesi Menson again asked Michael Menson about what had happened. Michael Menson gave the same account. Kwesi Menson took notes on these occasions. Kwesi Menson had been asked to keep notes of these conversations by his sister, Alex Menson, because the police had resisted her requests to take a statement directly from Michael. Kwesi Menson called the police on approximately three occasions from 28 to 29 January 1997 urging them to come to the hospital to take a statement from Michael. Alex Menson also called the police on repeated occasions over the same period requesting them: to take a statement from Michael; to go to the site of the incident; to take finger prints from the telephone box near to the place where Michael had been found; to interview local people; to put up an incident board requesting information; and to launch a media appeal for witnesses. On 30 January 1997 Detective Inspector Williams came to the hospital, but he arrived at a time when Michael Menson was drowsy. Detective Inspector Williams decided not to take a statement from Michael Menson. Kwesi Menson gave a statement to Detective Inspector Williams summarising Michael’s account of the incident. However, during this meeting Kwesi Menson became very concerned because Detective Inspector Williams did not appear to take a full or accurate record of what Kwesi Menson was saying. During the period between 28 January to 3 February 1997 Michael Menson received surgical treatment almost every day. When he was not in a post-operative state and up until 31 January, he was lucid, sitting up, talking to his family, feeding himself, doing crosswords, chatting with hospital staff and taking telephone calls. This included a telephone conversation with Ezekial Adewale during which Michael repeated his account of the incident and the attack by four young white men which, he stated, had occurred near a telephone box in Edmonton. Notwithstanding Michael’s ability to make such statements to his family and friends, neither Detective Inspector Williams nor any other police officer took a statement from him at any stage. On 3 February 1997 Michael Menson had a cardiac arrest and fell into a coma until 13 February 1997, when he died. On 26 February 1997 the inquest into Michael Menson’s death before the Coroner’s Court was opened. It was adjourned on a number of occasions. During this time the police reported to the Coroner on several occasions, but copies of these reports were not disclosed to Michael Menson’s family. In January 1998 an examination into the procedures and practices during the first stage of the investigation into Michael Menson’s death was carried out by the Metropolitan Police Service (“MPS”). In March 1998 the results of this examination were produced. The family were informed that this examination confirmed some of the doubts that the enquiry was not handled as well as it could have been and that an Investigating Officer had been formally appointed to look into the matter. The examination was made available to the Coroner but was kept back from the family as being confidential. On 19 August 1998 the Menson family sent a letter of complaint to the Police Complaints Authority (“PCA”) concerning the MPS’s decision to withhold evidence from Michael Menson’s family prior to the inquest. On 25 August 1998 Deputy Assistant Commissioner Townsend of Area 3 of the MPS responded informing the family that the complaint did not fall within section 84 of the Police and Criminal Evidence Act 1984 and therefore would not be recorded as such. This letter went on to respond to points of concern expressed in the letter of complaint. On 16 September 1998 a verdict of unlawful killing was returned by a jury at Hornsey Coroner’s Court following a hearing lasting just over one week during which evidence had been given by a number of witnesses including fire experts on behalf of the MPS. On 16 September 1998 Deputy Assistant Commissioner John Townsend issued a statement on behalf of the MPS regretting that for the first 12 hours after the attack on Michael Menson, the police treated it as a case of self-immolation. On 25 September 1998 the family lodged a further letter of complaint with the PCA setting out the particulars of complaints in detail from the time that Michael Menson was discovered by the police in the early hours of 28 January 1997 until shortly after the inquest. The following criticism of the police’s handling of the case was made in the letter of complaint: 1. There were major errors in the police investigation of Michael Menson’s death, at the very outset of the case (and beyond) which substantially diminished the chances of detecting and prosecuting those responsible for Michael Menson’s death. 2. There was a concerted effort by all key officers (from the officers first on the scene, to Deputy Assistant Commissioner level) to minimise and obscure these errors and deflect criticism from the police. 3. These imperatives led the police: – to continue, beyond the first 12 hours of the investigation of Michael Menson’s death, to fail diligently or promptly to investigate the death; – to pressurise, abuse and mislead the Menson family about how Michael Menson met his death and the police investigation, with a view to affecting their ability properly to grieve and be represented at the inquest; – improperly to influence the Coroner conducting the inquest and to seek to lead the jury to bring a verdict which was least embarrassing to the Metropolitan Police. 4. The police investigation into Michael Menson’s death was affected by racism and the subsequent internal investigation into the quality of the investigation failed even to address this issue. The PCA appointed the Chief Constable of the Cambridgeshire Constabulary to carry out an investigation into the family’s complaint. On 20 January 1999 the applicants were advised by Counsel that there were no reasonable grounds for advising the grant of legal aid to bring proceedings against the police in the light of the domestic law in respect of actions in negligence and claims of racial discrimination against the police. On 15 February 1999 a Report of an Inquiry chaired by Sir William Macpherson of Cluny, a retired High Court Judge, was published into matters arising from the death of Stephen Lawrence, a black 18-year old youth who was murdered by a group of youths on 22 April 1993. The Inquiry investigating his death and its subsequent investigation by the MPS found that institutional racism existed both in the MPS and in other police services and institutions countrywide. The Inquiry found institutional racism primarily apparent in the actual investigation of Stephen Lawrence’s murder, including the police treatment and approach to the victim, key witnesses and the family of Stephen Lawrence and the “lack of urgency and commitment in some areas of the investigation”. On 4 March 1999 the family of Michael Menson, with the assistance of campaigners, leafleted the area within which the suspects lived appealing for further information in respect of the murder. On 9 March 1999 a suspect was arrested and later charged in connection with the death of Michael Menson. Two further suspects were arrested and later charged on 11 March 1999. Two of the accused (M.P. and C.C.) were committed for trial at the Central Criminal Court, London, for the murder of Michael Menson and conspiracy to pervert the course of justice. The third accused (H.A.) was committed to stand trial at the Central Criminal Court for conspiracy to pervert the course of justice. On 5 May 1999 another suspect (O.C.) was arrested in northern Cyprus and charged there on 5 August 1999 with the murder of Michael Menson. On 15 June 1999 the applicants’ solicitor wrote to the PCA asking that the PCA also investigate other areas of complaint including the failure of the pre-inquest investigating teams to co-operate fully with the Racial and Violent Crime Unit and the making of untrue and misleading press statements damaging to Michael Menson’s family. On 21 October 1999 the applicants’ solicitor was informed that the PCA had felt it wise to delay any further investigation into the applicants’ complaints pending the outcome of the criminal case against the accused in the English courts. Further letters of complaints were addressed by the applicants’ solicitors to the Director of the Task Force alleging a failure on the part of the Task Force to liaise or to communicate adequately with the Menson family in respect of the criminal proceedings against the accused including the trial taking place in northern Cyprus. On 25 November 1999 a criminal court in northern Cyprus found O.C. guilty of the manslaughter of Michael Menson and sentenced him to fourteen years’ imprisonment. By letter dated 23 December 2002, the applicants’ lawyer informed the Registry that the accused’s appeal had been rejected on 29 June 2001. In December 1999 the Central Criminal Court in London found M.P. guilty of murder and sentenced him to life imprisonment. C.C. received a ten-year prison sentence for manslaughter. H.A. (and his co-accused) was convicted of perverting the course of justice in connection with the murder of Michael Menson and the subsequent investigation. All three accused received separate sentences on this count. According to the applicants’ lawyer’s letter of 23 December 2002, all of the accused’s appeals were rejected although the sentence of one of them was reduced. The applicants maintain that the evidence given in the trials against the accused revealed the inadequacy of the police investigation. The applicants listed twenty-two areas of concern in a letter addressed by their solicitor to the PCA on 22 June 2000, including: the unfounded belief of police officers following the attack on Michael Menson that he had tried to commit suicide; the failure to seal the scene of the crime resulting in a loss of evidence; the failure to record or act on Michael Menson’s accounts to medical and nursing staff that other persons were responsible for what happened to him; the error of the police in recording the deceased’s injuries as non-life-threatening; threats made to and harassment of members of the deceased’s family by the police when, for example, they queried the police appeal for witnesses to come forward; assertions made by a police officer at the inquest that there was no evidence that others were involved in Michael Menson’s death; and the conduct of the police with respect to the conduct of the inquest and the criminal trials. The Menson family members made formal statements to the Cambridge Constabulary investigating the case on behalf of the PCA in support of these complaints, as well as the complaints set out in the letter dated 25 September 1998 from the applicants’ solicitor. On 8 February 2000 the PCA wrote to the applicants’ solicitor reporting on the evidence collated to date. The letter stated among other things: “Carefully examining the first 12 hours will be fundamental to understanding what came later as it appears that once flawed explanations had entered the minds of police officers, to varying degrees it appears it remained present throughout the ensuing period up to, including and after the inquest. To what extent racial stereotyping of both Michael Menson and the Menson family took place and how this may have affected the investigation of his death will be an integral part of the investigation throughout. Similarly we will be examining whether there was an institutional failure by the Metropolitan Police to challenge with sufficient rigour the assumptions made at the start. This will include examining this issue up to and including Chief Officer levels if necessary.” On 22 April 2000 the PCA wrote to the applicants’ solicitors stating, among other things: “There is now available a significant body of evidence containing new information about these events, which appears to provide support for the family’s complaints from a number of independent directions ....” On 13 September 2000 the applicants’ solicitor received an anonymous statement dated 1 September from a member or ex-member of the MPS. This statement, purportedly made on behalf of certain unidentified “serving and retired members”, contained serious allegations of misconduct by certain police officers involved in the investigation, including an allegation that one had lied to the Coroner during the inquest proceedings. On 2 November 2000 the applicants’ representatives were informed at a meeting that the PCA had begun to interview nine police officers under caution but that only one had chosen to answer questions. A further difficulty was that certain key police officers had retired or were about to retire and could not be interviewed without their consent, and in any event not under caution. A report could not expected before November 2001 at the latest. One key officer (S.) retired on at the beginning of 2001 and was therefore no longer subject to the police disciplinary code. On 31 December 2002 the PCA informed the applicants’ solicitors in writing that it had received the Investigating Officer’s report and that the PCA was satisfied with the investigation which had been carried out into the applicants’ complaints. A copy of the report (which was supported by 218 statements, 465 documents, 18 interviews with officers under investigation and 17 appendices) had been made available to the Crown Prosecution Service (“CPS”). The applicants’ solicitors’ were further informed that they would be notified if the CPS decided to bring criminal charges in the event of findings that any police officers had committed a criminal offence. The PCA’s letter concluded: “I regret that there may be yet further delay while these next steps in dealing with your complaint are completed. The Authority will consider the disciplinary aspects of the case only after any criminal issues have been decided.” In England it is a rule of the common law that no one can recover damages in tort for the death of another (Baker v. Bolton (1808) 1 Camp. 493). The Section 1 of the Fatal Accidents Act 1976 confers a right of action for a wrongful act causing death. Section 1(2) of that Act provides that an action may be brought for the benefit of the “dependants” of any deceased person against a person who wrongfully caused the death. If there is no dependency, there is no pecuniary loss to recover as damages. Bereavement damages (currently fixed at £7,500) are only available to parents of a child under the age of 18 (section1A(2)). Funeral expenses are recoverable (section 3(5)). The statutory survival of causes of action enables recovery on behalf of the deceased’s estate of damages for losses suffered by the deceased before he died. This includes any non-pecuniary loss such as damages for any pain and suffering experienced between the infliction of injury and death. Domestic case-law on the liability of the police at the relevant time in civil law for acts or omissions in the investigation and suppression of criminal offences is summarised in the Court’s Osman v. the United Kingdom judgment (Reports of Judgments and Decisions 1998-VIII). On 30 November 2000 the Race Relations (Amendment) Act received Royal Assent. The aim of this Act (“the 2000 Act”) is to bring about changes to the Race Relations Act 1976 (“the 1976 Act”) by allowing applicants to bring proceedings in respect of racially discriminatory acts by (among other public authorities) 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 police officers under their command. The 2000 Act has no retrospective effect. Section 75 provides for the application of the provisions of the Act to persons holding statutory office as it applies to private persons. Therefore police constables are subject to its provisions. A discrimination claim against the police in the conduct of its investigations may only be brought if it falls within the exhaustive provisions set out in the 1976 Act and, in particular, section 20, which deals with the provision of services to the public or a section of the public. The Court of Appeal has held in the case of 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 amount to the provision of services to the public for the purposes of section 20(1) of the 1976 Act. According to the applicants, this greatly limits the scope of any claim under the 1976 Act against the police. In the applicants’ conclusion, there is no provision in the 1976 Act that permits an action to be brought in respect of the police investigation of the attack on Michael Menson or confers any legal remedy in respect thereof.