Media Media releases Darren Cumberbatch: Police watchdog announces rare reinvestigation of restraint and death of Black man 28 July 2022 Darren Cumberbatch, a 32 year old Black man, died in hospital on 19 July 2017, nine days after excessive use of force against him by Warwickshire Police officers. This took place whilst he was experiencing a mental health crisis in a bail hostel, McIntyre House, in Nuneaton. A jury inquest took place in 2019 and found the police use of force against Darren, which ‘may have been excessive and avoidable’, contributed to his death. See notes for further background. Last year the Independent Office for Police Conduct (IOPC) included Darren’s death in a critical review of cases involving Tasers. This led Darren’s and other families to call for reinvestigation of their cases. Today the IOPC has admitted that there were material flaws in their original investigation into Darren’s death. They have announced a rare decision to reinvestigate key elements of the case, in particular the officers’ entry into the toilet cubicle in McIntyre House where Darren had retreated, and their subsequent use of force. The IOPC agrees with the family that the reasonableness of the officers’ decision to enter the toilet area was not sufficiently challenged by their original investigation. Equally, the officers’ lack of communication, planning, and leadership was not sufficiently explored. Had this been done then the IOPC considers it likely that the events at McIntyre House, leading up to the officers entering the toilet area, would have been the subject of a conduct investigation In terms of the use of force, the officers’ entry into the toilet cubicle resulted in a large amount of force used on Darren which included the use of Taser, PAVA spray, baton strikes, palm strikes, punches, and thigh stamps. This element of the IOPC investigation was not certified as a conduct investigation. Because of this, some of the officers who used force at McIntyre House simply provided statements to the investigators and were not interviewed as subjects. The officers were essentially treated as witnesses and their accounts were not critically analysed. The officers recognised, or should have recognised from their training, that Darren was suffering from Acute Behavioural Disturbance (ABD - a set of symptoms of a person in a heightened state, which amount to a medical emergency). They should therefore have ensured this featured in their risk assessment and decision making. The IOPC recognises that the failure to properly test the officers’ evidence under a misconduct notice, even in circumstances where they had provided detailed written accounts, amounted to a material flaw in their investigation. In terms of the public interest to reinvestigate, in a letter to the family the IOPC recognised that “the actions, decisions and omissions of those who dealt with Mr Cumberbatch ultimately resulted in significant force being used against a Black man who was suffering from ABD.” They continued, “As noted by the pathologist, the force used was a contributory factor to Mr Cumberbatch’s death. The issues relevant to the use of force, including the decision to enter the toilet area and to remain there, are significant and were not sufficiently explored during the original investigation. The Decision Maker acknowledges that this failure has the potential to undermine the public trust and confidence in the police complaints and misconduct system, which includes conducting effective independent investigations, as well as in policing generally The IOPC have however decided not to reinvestigate later aspects of the restraint in the car park of George Eliot Hospital, despite the submissions that the family made about this. Darren’s family now awaits a ‘mode of investigation’ decision from the IOPC, and expects an independent investigation to be shortly be allocated to an investigation team. Carla Cumberbatch, sister of Darren said: “I welcome the IOPC recognition that their investigation was flawed and that it is in the public interest to reinvestigate the police officers’ conduct at McIntyre House. It is galling to my family that this is now five years after Darren’s death. We made submissions to the investigator during and at the end of their investigation years ago that the investigation was flawed. Back in September 2018, we set out our concerns to the IOPC on a lack of scrutiny of the degree and nature of force used by police against Darren, who was clearly mentally unwell and vulnerable. Pathology evidence shows the restraint and related physical exertion contributed to Darren’s death. Therefore, the use of force requires careful scrutiny and analysis. We told the IOPC that their original investigation did not consider key issues including whether containing Darren or de-escalation could have been an option, justification for the use of force, and the veracity of claims that officers felt threatened by Darren. There was also no consideration of what explanations from police were given at the time, compared to what was later said in interviews, and whether there are implications for the credibility of officers’ evidence. These concerns have now been acknowledged, but we had to threaten to judicially review the IOPC to get to this point. I remain disappointed that the IOPC will not reinvestigate the police officers’ conduct in the car park of George Eliot Hospital, given that the jury concluded ‘The police continued to restrain Darren. This included restraining him in a prone period for a period, as well as leg restraints, physical force and rear handcuffing, some of the police restraint in the hospital car park may have been excessive and, at times, avoidable.’ This restraint was prolonged despite officers becoming concerned about Darren’s breathing. Evidence about that emerged from the hospital security officer’s body worn video footage, which officers were cross examined about in the inquest, but which the IOPC failed to consider in their original investigation. I will carry on my fight for justice for Darren.” Deborah Coles, director of INQUEST said: “Robust investigation of deaths after police contact is vital for identifying any failures, criminality or wrongdoing, and ensuring police officers are held to account. This is in the public interest, not least when deaths raise broader concerns around the disproportionate use of excessive force against Black men, and the impact of racism and discrimination in police decision making. Yet again it is the inquest scrutiny afforded by family representation that has revealed the serious inadequacy of IOPC investigations into deaths after the use of force. Without the persistence of his family to demand that the IOPC do their job and reinvestigate the dehumanising and brutal treatment of Darren we would not be where we are today. We must now see a full and fearless investigation without further delay.” Kate Maynard of Hickman and Rose solicitors said: “As Carla’s says, we were concerned about the original investigators’ lack of scrutiny of the conduct of officers throughout the investigation. The officers who used force on Darren at McIntyre House were interviewed as witnesses rather than subjects. The threshold to treat officers as subjects and declare a conduct investigation is low. The IOPC only needed to consider there to be an indication that the officer may have committed a criminal offence or have behaved in a manner that would justify them facing disciplinary proceedings. The failure to diligently exercise their duties and responsibilities and the excessive use of force are obvious potential disciplinary infringements. The failure to interview the officers as subjects of investigation, and to scrutinise and challenge their evidence was key here, as the IOPC has accepted “the failure to properly test the officers’ evidence under a misconduct notice even in circumstances where they had provided detailed written accounts amounted to a material flaw in the investigation”. What concerns me is that the IOPC is making the same mistake again in their investigation of the death of Oladeji Omishore (Deji). The two officers who confronted Deji on Chelsea Bridge are still being treated as witnesses to the investigation rather than subjects. I fear we will be in the same place again in five years time with their evidence unchallenged, trying to make up for a flawed investigation. Meanwhile, evidence may be lost over time, and the bereaved family will feel the injustice. Another example of where a decision was made at an early stage not to designate an officer as being the subject of a conduct investigation is the IOPC’s investigation of the police shooting of Sean Fitzgerald. In that case it was two years before the IOPC then designated the police shooter as being the subject of a conduct investigation. Bereaved families are concerned that there is a systemic reticence in the IOPC to declare a conduct investigation. We would urge the IOPC to retrain their investigators and cascade the lessons learned in this case, so that their decision making is more robust and to restore public trust and confidence in the police complaints and misconduct system.” ENDS NOTES TO EDITORS For more information and a photo of Darren contact Lucy McKay on [email protected] or 020 7263 1111 The family are represented by INQUEST Lawyers Group members, Kate Maynard and Helen Stone of Hickman & Rose Solicitors, and Fiona Murphy of Doughty Street Chambers. Background Darren was a Black man, who was a qualified electrician and had worked for ten years at the Lear Corporation. His family describe him as a loving, quick-witted, and bubbly man who would help anyone. He had been released from prison a few weeks prior to his death, and had been looking forward to a positive future. Darren was living at McIntyre House bail hostel in Nuneaton. On 10 July 2017 at 12.23am staff contacted police to raise concerns about his behaviour. Darren was critically ill, frightened and suffering from Acute Behavioural Disorder. Shortly after police units arrived Darren took refuge in a small toilet cubicle. After a short wait, without any risk assessment, discussion or planning, seven officers entered the cubicle including several who were carrying Tasers. In the course of the next ten minutes Darren was struck with batons, Tasers were discharged three times, PAVA incapacitant spray was directed at him, and officers used multiple closed first punches and stamped on him. All inside the small cubicle. Darren was arrested, handcuffed and taken to the ground of the cubicle. He was then restrained in the prone position (chest down) outside the toilet area and was further restrained as he was taken to a police van. He was eventually taken to hospital, removed from the van and further restrained in the car park of George Eliot Hospital. Darren was distressed and very ill by the time of this arrival at A&E department, yet he remained in mechanical restraints at the hospital for over an hour. He was admitted for treatment, but his health continued to decline and he died nine days later on 19 July 2017. Other relevant cases: Oladeji ‘Deji’ Omishore died on 4 June 2022 following contact with two Metropolitan Police Officers on Chelsea Bridge, following multiple use of Taser. The investigation is ongoing. See media release. Sean Fitzgerald died on 4 January 2019 after receiving a single gunshot wound to the chest as he exited a property, whilst unarmed, in Burnaby Road in Coventry. He was shot by West Midlands police. See media release. Re-investigation Power The re-investigation provisions are set out at section 13B of the Police Reform Act 2002 (PRA) and provide: `(1) …….where – (a) ….. (b) a report on an investigation of a complaint, recordable conduct matter or DSI matter carried out by a person designated by the Director General has been submitted to the Director General (or, in the case of an investigation carried out under paragraph 19 of Schedule 3 by the Director General personally, is otherwise completed by the Director General) under paragraph 22(5) or 24A of Schedule 3. (2) The Director General may at any time determine that the complaint, recordable conduct matter or DSI matter is to be re-investigated if the Director General is satisfied that there are compelling reasons for doing so.’ The IOPC has developed guidance on the process to be followed and the circumstances in which compelling reasons will be found. To find compelling reasons a decision maker must be satisfied that: The original investigation was flawed in a manner which had a material impact on subsequent decisions on discipline, performance and/or referral to the Crown Prosecution Service (CPS); and/or There is significant new information which requires further investigation and a real possibility that the new information, had it been available, would have led wholly or partly to different decisions on discipline, performance and/or referral to the CPS; and It is necessary to require a reinvestigation in the public interest.