Custody on trial
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This is only the second time any police have been charged with manslaughter in relation to an on-duty incident*.
The charges in the latest case alleged gross negligence in duty of care to an intoxicated man who had been brought to the Hawera Police Station cells following a report of an assault. Unbeknown to the officers, he had also taken a potentially lethal dose of tramadol and codeine and he died later that night in the police cells.
Last month, after a three-week jury trial at the High Court at New Plymouth, all three officers were found not guilty.
It has been more than two years since the death of Allen Ball.
Throughout what has been a lengthy and distressing process for all parties, the Police Association has provided legal and personal support for the members and their families.
Apart from the trauma for all concerned, the case has highlighted several important issues.
The Police Association has already publicly questioned the charges being brought in the first place.
Association president Chris Cahill has said he believed the case should never have been a criminal matter and should more correctly have been investigated through a WorkSafe inquiry, as a death at a workplace, and a coronial hearing.
“This prosecution has rightly left other staff working in custody units nervous and there can be no tolerance for staff having to continue to work in under-resourced custody units with inadequate training.”
The association has previously, on several occasions, expressed serious concerns about the high-risk nature of custody suite management, the condition of Police cells and the need for proper resourcing and training.
Chris agreed with criticism raised during the trial that existing training was not adequate.
Since the Hāwera case was brought before the court, Police has changed the way that “pop-up” computer alerts regarding the care of people in cells are managed. Now, the alerts can only be overridden or cancelled from the screen by a supervisor.
Kerry Ansell, the Police Association senior employment advisor for the Central and Eastern District, one of the team supporting the officers, says the case has been incredibly challenging from a welfare perspective. It wasn’t just the three people on trial who needed support.
The case had a ripple effect in terms of assistance, extending to the families of those charged and to the officers’ colleagues, some of whom were involved in the investigation and doing related interviews.
Initially there had been five officers in the frame and then two of those had to give evidence for the prosecution.
In a provincial rural community such as South Taranaki, the impact of a case such as this is felt by many, Kerry says. It has gone on for more than two years and it’s not over yet. There will be an employment investigation, an IPCA report and an inquest.
Kerry says that professionally he was glad he could be there for the people involved, and, from a personal perspective, he has great empathy for them. During the trial there was always someone from the association available to those involved.
“We were trying to keep their minds occupied in a very abnormal situation.
It was a horrible situation.
“Of course, Mr Ball’s family were looking for answers, which they hoped to get in a criminal context, but this was a workplace death.”
Defence lawyer Susan Hughes says the start point for the defence case was to consider how it was that such competent and highly regarded officers made a mistake – albeit a mistake that did not meet the threshold of gross negligence.
When you ask that question, she says, the science of human factors becomes relevant and was raised during the trial.
The defence case was that the officers saw a “sleeping drunk” and had no reason to believe he needed to go to hospital.
“They did not realise that Mr Ball was, in fact, unconscious. Human factors talk about confirmation bias, where we all see what we expect to see,” she says.
“The established wisdom is that 37 per cent of all detainees in New Zealand are affected by alcohol and drugs. There are between 140,000 and 170,000 detentions a year involving 75,000 detainees. If you are a frontline officer, you deal with a lot of detainees who are affected by alcohol and drugs.
“If they had known about the drugs, they would have had a different response. These are good people who were serving their community.”
Susan says the science of human factors explains why they “got it wrong, as opposed to being indifferent, lazy, callous or reckless – which is the test for gross negligence”.
“We all make decisions based on short-cut thinking, rather than looking at issues forensically.”
That is why the quality of police training in this area is so relevant, she says. “Maybe there needs to be consideration of training to combat human factors.”
Since the beginning of the year, Police has said it has been doing a review of all areas of custody management. This follows a previous review in 2015 and two IPCA reports – one in 2012 into deaths in custody and one in 2015 looking at general management of custody suites.
At the time of going to print, Police had not responded to a request for a progress report on the review.
Chris Cahill says it is time for Police to demonstrate real progress with the custody review project.
“The trial evidence clearly identified that lack of appropriate training was a significant issue, and this has been a key factor that we have raised many times with Police.
“We believe WorkSafe must take more interest in issues like this, and Police needs to be accountable when it fails to heed warnings of potential failings in the area of custody.”
The impact on the officers involved has been immeasurable, he says. “While it is pleasing that the association has been able to assist the officers with legal support and welfare, it cannot change how harmful the effect of this experience has been on the officers and their families.”
*In the previous case in the 1980s, an Auckland officer was charged after chasing an offender who was hit by a truck. He was found not guilty.